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"ARBITRATION"  AS  A  TERM  OF 
INTERNATIONAL  LAW. 


BY 


THOMAS  WILLING  BALCH, 

Member  of  the  Philadelphia  Bar,  The  American  Philosophical 

Society,  etc. 


Reprinted  from  the  Columbia  Law  Review, 

November  and  December,  1915. 


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"  ARBITRATION  "  AS  A  TERM  OF 
INTERNATIONAL  LAW.* 

In  spite  of  the  breaking  out  of  The  Great  War,  involving  in 
its  meshes  more  than  half  of  the  land  on  the  earth  and  the 
majority  of  the  great  powers  of  the  world  as  well  as  many  small 
ones,  at  present  ten  in  all,  nevertheless  ample  proof  is  to  be 
found  in  the  historic  development  of  International  Arbitration, 
especially  within  the  past  fifty  years,  as  a  mechanism  for  settling 
differences  between  nations  by  judicial  means,  that,  thanks  to 
the  establishment  of  the  International  Courts  which  sat  upon 
the  Alabama  claims  and  the  Bering  Sea  Fur  Seal  Fisheries  cases 
respectively,  a  precious  instrument  to  avoid  war  in  many  instances 
beyond  the  scope  of  diplomatic  negotiations  to  settle,  has  been 
evolved  in  the  institution  known  as  International  Arbitration. 
Unfortunately  of  late  years  a  tendency  has  arisen  to  confound 
International  Arbitration  with  Municipal  Arbitration  and  to 
minimize  if  not  indeed  to  deny  entirely  the  judicial  quality  of 
arbitration  as  a  component  part  of  the  Law  of  Nations.  Doubt- 
less this  confusion  in  the  thoughts  of  those  who  have  not  studied 
attentively  the  philosophical  development  of  the  Law  of  Nations 
is  largely  due  to  a  failure  to  realize  that  the  word  Arbitration 
has  come  to  have  different  meanings  according  as  it  is  used  in 
Municipal  Law  on  the  one  hand  and  International  Law  on  the 
other.  It  seems,  therefore,  well  worth  while  to  examine  the 
meaning  of  the  word  arbitration,  as  it  has  been  defined  in  the 
older  dictionaries  of  the  English  language,  both  in  England  and 
America,  together  with  the  meaning  of  the  word  mediation.  Then 
to  test  the  sense  and  meaning  of  the  word  arbitration  as  used 
by  some  of  the  undoubted  masters  of  the  science  of  the  Law  of 
Nations.  And  finally  compare  the  judgments  given  by  the  Geneva 
and  Paris  International  Tribunals  in  the  Alabama  claims  and  the 
Bering  Sea  Fur  Seal  cases  respectively,  with  some  decisions  ren- 
dered by  some  notable  Municipal  Courts.  In  that  way  a  just 
opinion  as  to  what  was  intended  by  the  men  who  thought  out 
and  developed  the  institution  of  International  Arbitration  could 
be  formed. 

First  of  all  let  us  see  what  meaning  the  earlier  English  lexi- 
cographers have  assigned  to  the  word  arbitration  and  then  what 

*The  composition  of  this  article  was  completed  upon  May  13,  1915. 


2  COLUMBIA  LAW  REVIEW. 

sense  the  earlier  American  lexicographers  have  given  to  the  same 
word. 

In  the  fourth  edition  of  Edward  Phillips'  well  known  dictionary, 
The  New  World  of  Words,  published  at  London  in  1678  by  himself, 
he  merely  says : 

"Arbitrator  (Lat.)  An  umpire,  a  commissioner,  chosen  by 
mutual  consent  to  decide  controversies  between  party  and  party." 

In  his  fifth  edition  printed  in  1696,  he  says: 

"Arbitrator,  (Lat.)  An  umpire,  a  commissioner,  chosen  by 
mutual  consent  to  decide  controversies  between  party  and  party." 

"Arbitrament,  An  award.  Determination,  or  Judgment  which 
one  or  more  make  at  the  request  of  two  or  more  parties  upon  some 
Debt,  Trespass,  or  other  Controversie." 

In  the  seventh  edition  of  1720,^  much  more  is  given  in  reference 
to  the  general  subject  of  arbitration,  as  follows: 

"Arbiter,  an  Arbitrator,  an  Umpire,  a  Sovereign  Disposer. 
See  Arbitrator. 

"Arbitrage,  an  Arbitrator's  or  Umpire's  Decree  or  Sentence, 

"To  arbitrate,  to  award,  give  Sentence,  adjudge,  or  act  as  an 
Arbitrator. 

"Arbitration,  the  Act  of  Arbitrating,  the  Putting  an  End  to  a 
Difference  by  the  Means  of  Arbitrators. 

"Arbitrator,  an  extraordinary  Judge,  indifferently  chosen  by 
the  mutual  Consent  of  two  Parties,  to  decide  any  Controversy 
between  them;  a  Days-Man,  or  Referee:  The  Civilians  make  a 
difference  between  Arbiter  and  Arbitrator;  the  former  being 
obliged  to  proceed  according  to  Law  and  Equity;  whereas  the 
latter  is  left  wholly  to  his  own  Discretion,  to  act  without  Solemnity 
of  Process,  or  Course  of  Judgment." 

Thus  Phillipps,  while  at  first  he  does  not  define  very  precisely 
what  an  arbitrator  is,  gradually  in  his  succeeding  editions  leans 
more  and  more  to  the  view  that  an  arbitrator  is  a  judge  and  his 
decisions  are  judgments.  Again  Phillipps,  in  his  fifth  edition,  speaks 
of  arbitrament  as  being  a  judgment.  In  his  seventh  edition  of 
1720,  the  judicial  quality  of  arbitration,  using  the  word  in  a  generic 
sense,  is  much  more  marked  and  clearly  stated.  Thus  "to  arbitrate" 
is  said  in  that  edition,  among  other  definitions,  to  mean  to  "give 
sentence,"  and  "to  adjudge."  And  the  word  "arbitrator"  is  defined 
as  meaning  "an  extraordinary  judge." 

^The   New   World   of   Words,   or   Universal   English   Dictionary,   com- 
piled by  Edward  Phillipps,  Gent.    Seventh  edition,  London,  1720. 


INTERNATIONAL   ARBITRATION.  3 

In  the  latter  part  of  the  eighteenth  century,  Samuel  Johnson, 
who  surely  was  a  man  of  letters  possessed  of  no  small  knowledge 
of  the  meaning  of  his  native  English  tongue,  supports  in  his 
Dictionary  much  more  strongly  and  exactly  than  his  predecessor 
Phillipps  the  judicial  character  of  arbitration.  For  example,  in 
the  fourth  edition  of  his  celebrated  Dictionary  published  in  1773,^ 
he  says: 

"An  Arbiter,  n.  f.  (Lat.) 

"i.  A  judge  appointed  by  the  parties,  to  whose  determina- 
tion they  voluntarily  submit. 

"2.  One  who  has  the  power  of  decision  or  regulation;  a 
judge. 

"To  Arbitrate,  v.  a.  (arbitror,  Lat.) 
"i.  To  decide;  to  determine, 
"2.  To  judge  of. 
"To  Arbitrate,  v.  n. 

"To  give  judgment. 
"Arbitration,  n.  f.  (from  arbitror,  Lat.) 

"The   determination  of  a  cause  by   a  judge   mutually 
agreed  on  by  the  parties  contending. 
"Arbitrator,  n.  f.  (from  arbitrate). 

"i.  An  extraordinary  judge  between  party  and  party,  chosen 
by  their  mutual  consent. 

"Arbitrement,  n.  f.,  (from  arbitror,  Lat.) 

"i.  Decision;  determination. 

"2.  Compromise." 

Thus  Johnson  speaks  of  an  arbiter  as  a  "judge".    To  arbitrate 

he  defines  as  "to  decide"  and  "to  judge  of."     "Arbitration"  he 

says  is  the  settling  of  a. question  by  "a  judge  mutually  agreed  on" 

by  the  disputants.     In  the  end  he  defines  the  word  "arbitrament" 

equally  as  meaning  a  decision  and  a  compromise,  two  distinctly 

opposite  terms.     But  excepting  this  last  definition  which  is  one 

half  in  favor  of  supporting  the  idea  that  the  group  of  words 

described  by  the  generic  term  "arbitration"  means  an  adjustment 

of  a  dispute  upon  the  basis  of  give  and  take  by  the  disputants, 

Johnson  strongly  supports  the  view  that  in  his  time  the  word 

"arbitration"  meant  the  settlement  of  a  controversy  by  a  judge 

chosen  by  the  parties  concerned  to  decide  that  one  specific  case. 

'Samuel  Johnson,  Dictionary  of  the  English  Language:  fourth  edition, 
revised  by  the  Author,  London,  1773. 


4  COLUMBIA  LAW  RBVinW. 

Johnson's  support  of  the  judicial  meaning  of  the  word  arbitra- 
tion in  his  time  is  further  attested  by  his  clear  definitions  of  the 
group  of  words  that  may  be  classified  under  the  generic  word 
mediation.    In  the  edition  of  1773,  Johnson  says: 
"To  mediate,  v.  n.  (from  medius,  Latin.) 

"i.  To  interpose  as  an  equal  friend  to  both  parties;  to  act 
indifferently  between  contending  parties;  to  intercede. 
"2.  To  be  between  two. 
"Mediation,  n.  f.  (mediation,  French;  from  medius,  Lat.) 
"i.  Interposition;  intervention;  agency  between  two  parties, 
practised  by  a  common  friend. 

"2.  Agency  interposed;  intervenient  power. 
"3.  Intercession;  entreaty  for  another. 
"Mediator,  n.  f.   (mediateur,  French.) 

"i.  One  that  intervenes  between  two  parties. 
"2.  An  intercessor ;  an  entreator  for  another ;  one  who  uses 
his  influence  in  favor  of  another. 

"3.  One  of  the  characters  of  our  blessed  Saviour." 
Thus    mediation,   according   to   Johnson's    Dictionary,    clearly 
means  an  attempt  to  have  a  difficulty  arranged  by  the  friendly 
advice  of  a  third  party. 

If  we  turn  next  to  American  lexicographers  we  find  that  Noah 
Webster,  in  the  first  edition  of  his  well  known  Dictionary,^  says: 
"Arbitrate,  v.,  to  hear  and  judge  as  an  arbitrator. 
"Arbitration,  n.,  reference  of  a  controversy  to  persons  chosen 
by  the  parties,  a  hearing  before  arbitrators,  award. 

"Arbitrator,  n.,  a  person  chosen  by  a  party  to  decide  a  contro- 
versy, one  who  has  the  sovereign  right  to  judge  and  control." 
"Mediate,  v.,  to  endeavor  to  reconcile,  to  limit. 
"Mediation,  n.,  an  interposition,  agency,  entreaty. 
"Mediator,  n.,  an  intercessor,  kind  adviser,  manager." 
A  comparison  of  the  above  two  groups  of  words,  as  defined 
by  Webster  makes  it  clear  that  in  Webster's  judgment  when  he 
published  his  first  dictionary  in  1806,  an  arbitrator's  function  was 
to  judge,  while  that  of  a  mediator  was  to  adjust  a  dispute.     He 
does  not  say  one  word  to  suggest  that  arbitration  means  a  com- 
promise even  in  a  remote  degree. 

In  the  1841  edition  of  Webster,  a  great  deal  more  is  said  about 
both  groups  of  words.     In  speaking  of  an  arbiter  or  arbitrator 

'Noah  Webster,  A  Compendious  Dictionary  of  the  English  Language, 
New  Haven,  1806. 


INTERNATIONAL   ARBITRATION.  5 

and  of  arbitration,  except  that  twice  he  says  that  an  arbiter  or 
arbitrator  has  the  power  of  judging  or  deciding  "without  control," 
Webster  still  describes  an  arbiter  or  arbitrator  as  a  judge  chosen 
for  a  certain  specific  case,  in  other  words  a  judge  chosen  ad  hoc. 
For  to  Arbitrate  he  says,  in  1841,  means  "to  decide;  to  determine;  y 
to  judge  of."  Mediation  and  Mediator  and  their  kindred  words, 
he  defines  as  synonymous  with  reconciliation  or  adjustment. 

While  Webster  does  not  support  as  clearly  as  some  of  the 
earlier  English  lexicographers  do  the  judicial  character  of  an 
arbitrator  and  of  arbitration,  Worcester,  the  other  great  American 
lexicographer  emphatically  does.  In  his  edition  of  1846*  Worcester 
says: 

"Arbiter,  n.  (L.)  One  appointed  to  decide  a  point  in  dispute, 
an  arbitrator,  a  judge. 

"Arbiter,  v.  a.  To  judge. 

"Arbitrate,  v.  a.  (i.  arbitrated;  pp.  arbitrating,  arbitrated.) 
To  decide;  to  judge  of. 

"Arbitrate,  v.  n.  To  give  judgment.    South. 

"Arbitration,  n.  Act  of  Arbitrating.  (Law.)  The  investiga- 
tion and  determination  of  a  cause  by  an  unofficial  person,  or  by 
persons  mutually  chosen  by  the  contending  parties;  arbitrament. 

"Arbitration,  Bond.  n.  (Law.)  A  solemn  obligation  to  submit 
to  an  award.    Blackstone. 

"Arbitrator,  n.  An  umpire;  a  judge.  (Law.)  A  person  chosen 
by  parties  at  variance  to  determine  a  matter  in  dispute." 

"Mediate,  v.  n.  (medius,  L.)  (i.  mediated;  pp.  mediating, 
mediated.)  To  interpose,  as  a  common  friend,  between  two  parties, 
to  intercede ;  to  be  between  two. 

"Mediate,  a.  (mediat,  Fr.)  Intervening;  middle;  be  between 
two  extremes. 

"Mediation,  n.  (Fr.)  The  act  of  mediating;  interposition,  in- 
tervention,  agency   interposed;  intercession. 

"Mediator,  n.  {mediator,  L. ;  mediateur,  Fr.)  One  who  mediates ; 
an  intercessor;  one  of  the  characters  of  our  blessed  Saviour." 

In  the  above  definition  of  those  two  groups  of  words,  Worcester 
says  of  an  arbiter  that  he  is  "a  judge,"  and  to  arbitrate  is  "to 
decide;  to  judge  of,"  while  an  arbitrator  he  maintains  is  "a  judge." 
In  that  group  he  says  nothing  of  reconciliation  or  anything  else 
that  suggests  in  the  remotest  degree   compromise.     But  in  the 

*Joseph  E.  Worcester,  Dictionary  of  the  English  Language,  Boston, 
1846. 


Q  COLUMBIA  LAW  REVIEW. 

group  of  words  relating  to  mediation,  he  does  distinctly  maintain 
that  they  mean  reconciliation.  A  comparison  of  the  two  groups 
of  words  makes  it  still  more  clear  that  in  Worcester's  estimation  an 
arbitrator  was  a  judge  chosen  for  the  occasion. 

If  one  turns  from  these  two  renowned  American  lexicographers 
to  the  Law  Dictionary  of  John  Bouvier,  one  finds  that  in  his  second 
edition  of  1843,®  he  maintains  that  an  arbitrator  is  a  judge. 

Bouvier  says: — 

"Arbitrator : — A  private  extraordinary  judge  chosen  by  the 
parties  who  have  a  matter  in  dispute,  invested  with  power  to 
decide  the  same.  Arbitrators  are  so  called  because  they  have 
generally  an  arbitrary  power,  there  being  in  common  no  appeal 
from  their  sentences,  which  are  called  awards." 

When  he  defines  mediation,  however,  he  says  that  it  means 
compromise. 

"Mediation,  is  the  act  of  some  mutual  friend  of  two  con- 
tending parties,  who  brings  them  to  agree,  compromise  or 
settle  their  disputes." 

Thus  in  defining  these  two  words  Bouvier  sharply  defines  the 
difference  between  them,  to  wit,  that  an  arbitrator  is  to  judge, 
while  a  mediator  is  to  bring  about  an  agreement  by  means  of  a 
compromise. 

In  the  edition  of  1894  of  this  same  work,®  there  is  this 
definition : — 

"Arbitrator.  In  Practice.  A  private  extraordinary  judge, 
to  whose  decision  matters  in  controversy  are  referred  by  con- 
sent of  the  parties." 

In  the  above  definition  the  judicial  character  of  an  arbitrator 
is  distinctly  maintained. 

In  the  edition  of  1914/  edited  by  Francis  Rawle,  we  find : 

"Arbiter :  A  person  bound  to  decide  according  to  the  rules 
of  law  and  equity,  as  distinguished  from  an  arbitrator,  who 
may  proceed  wholly  at  his  own  discretion,  so  that  it  be  accord- 
ing to  the  judgment. of  a  sound  man." 

'John   Bouvier,  A  Law  Dictionary,   second  edition,   Philadelphia,   1843. 
•John   Bouvier,  A  Law  EHctionary,   Philadelphia,    1894. 
Vohn  Bouvier,  Law  Dictionary  &  Concise  Encyclopedia,  third  revision, 
eighth  edition,  by  Francis  Rawle,  Kansas  City  and  St.  Paul,  1914. 


INTERNATIONAL   ARBITRATION.  *i 

Then  the  following  illuminating  statement  is  immediately  made : 

"This  distinction  between  arbiters  and  arbitrators  is  not 
observed  in  modern  law." 

Continuing  to  define  the  word,  arbiter,  Bouvier's  1914  edition 
says: 

"One  appointed  by  the  Roman  praetor  to  decide  by  the 
equity  of  the  case,  as  distinguished  from  the  judex,  who  fol- 
lowed the  law." 

"One  chosen  by  the  parties  to  decide  the  dispute;  an 
arbitrator." 

In  this  last  edition  of  Bouvier  nothing  is  said  about  an  arbitrator 
being  a  reconciler. 

After  this  review  of  some  of  the  leading  authorities  in  the 
meaning  of  words  in  English,  it  is  evident  that  the  words  arbitrator 
and  arbitration  when  used  as  terms  of  Municipal  Law  in  the  past 
meant  something  different  from  the  boards  of  arbitration  which, 
constituted  to-day  under  Municipal  Law  to  decide  between  cor- 
porations and  their  employees,  often  agree  to  recognize  most  of 
the  demands  of  the  latter  regardless  of  any  justice  or  equity  ap- 
plicable to  the  controversy.  So  that  in  the  light  of  the  masters 
of  the  meaning  of  English  words,  it  is  evident  that  the  words 
arbitrator  and  arbitration  as  often  used  to-day  in  practice  in  our 
municipal  relations  have  so  largely  changed  their  meanings  of  a 
half  century  and  more  since,  that  in  municipal  affairs  to-day  an 
arbitrator  has  in  many  instances  almost  entirely  lost  the  judicial 
character  that  was  designated  by  the  same  word  in  the  middle 
of  the  last  century  and  before  that  time.  Nevertheless,  the  mean- 
ing attaching  often  to-day  in  Municipal  Law  to  the  words  arbitrator 
and  arbitration  does  not  alter  the  fact  that  according  to  the  best 
English  and  American  lexicographers,  those  words  in  the  past 
did  mean  that  an  arbitrator  was  a  temporary  judge  and  not  a 
reconciler,  and  that  when  an  arbitrator  was  appointed  to  hear  a 
cause  of  difference  between  two  parties,  he  was  to  decide  the  case 
as  a  judge  and  not  to  try  to  arrange  it  by  a  compromise. 

All  these  lexicographers,  however,  when  they  defined  the  words 
arbiter,  arbitrator,  arbitration  and  kindred  words  did  not  have  in 
mind  specifically  the  Law  of  Nations.  Consequently,  to  find  more 
authoritively  the  meaning  of  those  words  as  terms  of  the  Law 
of  Nations,  it  will  be  necessary  next  to  examine  what  some  of  the 


8  COLUMBIA  LAW  REVIEW. 

leading  publicists  have  understood  by  the  word  arbitration  and 
kindred  words  when  used  as  terms  of  International  Law.  The 
value  of  the  opinions  of  well  known  publicists  as  to  what  is  the 
Law  of  Nations  has  been  attested  by  eminent  judges  sitting  in  the 
highest  courts  in  the  world.  Thus  Sir  William  Scott,  afterwards 
Lord  Stowell,  sitting  in  1799  in  the  High  Court  of  Admiralty  of 
England  upon  the  case  of  The  Maria,^  relied  on  the  Swiss  pub- 
licist, Vattel,  "not  as  a  lawyer  merely  delivering  an  opinion,  but 
as  a  witness  asserting  the  fact— the  fact  that  such  is  the  existing 
practice  of  modern  Europe."  And  in  1900  in  the  case  of  The 
Paquete  Habana,''  Justice  Gray  of  the  United  States  Supreme  Court 
said  of  the  Law  of  Nations  and  treatises  on  that  Law: 

"International  Law  is  part  of  our  law,  and  must  be  ascertained 
and  administered  by  the  courts  of  justice  of  appropriate  jurisdic- 
tion, as  often  as  questions  of  right  depending  upon  it  are  duly 
presented  for  their  determination.  For  this  purpose,  where  there 
is  no  treaty,  and  no  controlHng  executive  or  legislative  act  or 
judicial  decisions,  resort  must  be  had  to  the  customs  and  usages 
of  civilized  nations;  and,  as  evidence  of  these,  to  the  works  of 
jurists  and  commentators,  who  by  years  of  labor,  research  and 
experience,  have  made  themselves  peculiarly  well  acquainted  with 
the  subjects  of  which  they  treat.  Such  works  are  resorted  to  by 
judicial  tribunals,  not  for  the  speculations  of  their  authors  con- 
cerning what  the  Law  ought  to  be,  but  for  trustworthy  evidence 
of  what  the  law  really  is." 

Among  such  publicists  and  jurists,  first  let  us  turn  to  Baron 
Pufendorf's  treatise.  The  Law  of  Nature  and  Nations,'^^  originally 
published  in  1672.  In  discussing  the  means  other  than  war  of 
settling  the  differences  that  arise,  he  refers  to  arbitration,  after 
other  modes  of  settlement  have  failed,  in  these  words:  "The 
only  thing  they  [the  disputants]  can  do,  is  to  pitch  upon  an 
Arbitrator,  and  each  bind  himself  to  stand  to  his  Award." 

Speaking  of  the  qualifications  necessary  for  an  impartial  arbitra- 
tor, Pufendorf  says  that  no  one  must  be  chosen  for  such  a  position 
who  has  a  reason  that  one  side  or  the  other  shall  win.  Then  con- 
cerning the  way  the  arbitrator  shall  judge,  Pufendorf  says  '}^ 

'(1799)  I  C.  Rob.  340,  *364. 

•(1900)  175  U.  S.  677,  700. 

"Samuel  Pufendorf,  Of  the  Law  of  Nature  and  Nations,  Oxford,  1710. 

"/J.,  p.  435. 


INTERNATIONAL   ARBITRATION.  9 

"Now  altho'  the  contending  Parties  enter  into  Compact  with 
the  Arbitrator,  about  taking  upon  him  his  Office,  (for  as  no 
Arbitrage  can  be  exercised  without  the  Consent  of  the  Parties,  so 
no  one  can  be  forced  to  be  Arbitrator  against  his  own  Consent;) 
yet  it  is  not  from  the  Force  of  that  Compact,  that  he  becomes 
obHged  to  judge  according  to  what  he  thinks  is  agreeable  to  the 
Laws  of  Conscience  and  Equity:  or  they  to  stand  to  his  Award. 
For  the  Law  of  Nature,  which  can  receive  no  Enforcement  from 
any  Compact,  obhges  him  to  judge  according  to  Justice ;  and  they 
are  obHged  to  submit,  without  any  Reserve,  to  his  Determination, 
because  otherwise  the  Design  of  going  to  an  Arbitrator  would 
be  frustrated,  and  there  would  be  no  End  to  such  Appeals." 

After  discussing  the  question  whether  an  arbitrator  should  judge 
according  to  the  law,  or  whether  he  should  mitigate  its  severity, 
Pufendorf  says  '}^ 

"If  it  be  doubtful  under  which  of  these  two  Qualifications  the 
Arbitrator  is  chosen,  he  ought  to  suppose  himself  tyed  up  to  those 
Rules,  which  a  Judge  would  be  obliged  to  follow;  for  it  is  for 
want  of  a  Judge  and  Judicature  that  he  is  called  in :  And,  in  a 
doubtful  case,  we  ought  to  take  that  side  which  is  clearest.  Besides, 
an  Arbitrator  can't  so  easily  act  unjustly,  if  he  has  a  limit,  as  if 
he  has  an  absolute  Power  delegated  to  him."  Then  Pufendorf 
makes  a  reference  to  mediation  and  the  duties  of  a  mediator  in 
these  words:  "Indeed  to  persuade  a  Mitigation  of  the  Rigour  of 
the  Law  is  properly  their  Business  who  voluntarily,  without  entring 
into  any  Engagements,  interpose,  as  common  Friends,  between  the 
contending  Parties." 

Then  as  to  the  kind  of  law  that  judges  should  use  in  judg- 
ing, he  says:  "Now  as  he  that  judges  between  Fellow-subjects, 
judges  according  to  the  Municipal  Laws  of  that  Place;  so  he  who 
judges  between  those  who  acknowledge  no  common  Municipal 
Laws,  ought  to  judge  according  to  the  Law  of  Nature;  unless  the 
Parties  submit  their  Cause  to  the  positive  Laws  of  some  particular 
State." 

Many  times  Pufendorf  speaks  of  the  "judgment"  of  an  arbi- 
trator. He  also  says:  "This  Arbitrators  have  in  Common  with 
Judges,  that,  in  the  Examination  of  Matters  of  Fact,  they  ought 
to  shew  themselves  equal  to  the  bare  Asservation  of  each  party, 
i.  e.  when  they  contradict  one  another,  to  believe  neither.  But 
when  Deeds,  Arguments  and  undeniable  Instruments  can't  be  pro- 

"/d.,  p.  436. 


10  COLUMBIA  LAW  REVIEW. 

duced,  they  must  then  give  Judgment  according  to  the  Testimony 
of  Witnesses." 

In  the  same  chapter  in  which  he  treats  of  arbitrators  and  arbitra- 
tion, Pufendorf  also  speaks  of  mediators  whom  he  differentiates 
clearly  from  arbitrators  as  follows : 

"But  Mediators,  who  interpose  between  contending  Nations, 
either  preparing  or  actually  engaged  in  War,  and  endeavour,  by 
their  Authority  and  their  Arguments  and  Intreaties,  to  bring  them 
to  Terms  of  Accommodation  are  not  properly  Arbitrators." 

Thus  in  Pufendorf's  conception,  if  contending  Nations  appealed 
to  an  arbitrator,  that  arbitrator  was  to  judge  between  them,  while 
a  mediator  was  to  reconcile  them  by  more  or  less  of  a  compromise. 

The  Swiss,  Emer  de  Vattel,  in  the  second  half  of  the  eighteenth 
century  says  :^' 

"The  mediator  ought  to  observe  an  exact  impartiality ;  he  should 
soften  reproaches,  calm  resentments,  and  draw  minds  towards  each 
other.  His  duty  is  to  favor  what  is  right,  and  to  cause  to  be  re- 
stored what  belongs  to  each:  but  he  ought  not  scrupulously  to 
insist  on  rigorous  justice.  He  is  a  moderator,  and  not  a  judge: 
his  business  is  to  procure  peace;  and  to  bring  him  who  has 
right  on  his  side,  if  it  be  necessary,  to  relax  something  with  a 
view  to  so  great  a  blessing.  *****  When  sovereigns 
cannot  agree  about  their  pretensions,  and  yet  desire  to  maintain, 
or  to  restore  peace,  they  sometimes  trust  the  decision  of  their 
disputes  to  arbitrators  chosen  by  common  agreement.  As  soon 
as  the  compromise  (agreement)  is  concluded,  the  parties  ought 
to  submit  to  the  sentence  of  the  arbitrators;  they  have  engaged 
to  do  this,  and  the  faith  of  treaties  should  be  regarded." 

The  German,  J.  B.  Kliiber,  writing  in  the  early  part  of  the 
nineteenth  century  says:^* 

"If  the  person  who  has  been  chosen  [arbitrator]  accepts,  he  has 
the  right,  after  a  discussion  and  a  sufficient  examination  of  the 
reasons  pro  and  con,  to  pronounce  the  arbitral  judgment  (laudum) 
which  he  believes  conforms  with  the  principles  of  the  Law  of 
Nations." 

That  is  what  Lord  Stowell,  for  instance,  attempted  to  do  in  the 
famous  judgments  which  he  gave  when  he  sat  in  the  High  Court 

"Ejner  deVattel,  The  Law  of  Nations,  or  Principles  of  the  Law  of 
Nature,   Dublin,   1787,  pp.  415-416. 

"J.  B.  Kliiber,  Droit  des  Gens  Moderne  de  UEurope:  Paris,  Sec.  318, 
p.  457. 


INTERNATIONAL  ARBITRATION.  11 

of  Admiralty  of  England  upon  prize  cases.  It  was  his  aim,  he  said, 
in  the  case  of  The  Maria,^'^  where  Swedish  vessels  were  involved*, 
not  to  forget  that  while  the  seat  of  his  Court  was  local,  the  Law  of 
Nations  which  he  was  to  apply  in  his  Court  was  world  wide 
in  its  application  and  as  binding  on  one  Nation  as  another.  Never- 
theless, like  all  municipal  judges  sitting  in  prize  cases,  his  judg- 
ments in  the  long  run  were  influenced  undoubtedly  in  some  degree 
by  the  needs  of  his  own  country  to  successfully  prosecute  the  war 
in  which  she  was  engaged. 

In  our  own  times,  as  a  result  of  the  additional  impetus  given 
to  the  development  of  international  justice  as  a  means  of  avoid- 
ing war  by  the  successful  submission  of  the  Alabama  claims  for 
judgment  to  the  Geneva  Tribunal,  a  number  of  distinguished  inter- 
national publicists  representing  the  best  learning  of  many  nations 
in  the  Law  of  Nations,  may  be  mentioned,  who  have  in  one  way 
or  another  expressed  their  understanding  of  what  is  meant  by 
arbitration  as  a  term  of  International  Law. 

Thus  the  Belgian,  Gustave  Rolin-Jaequemyns,  the  originator 
and  one  of  the  founders,  in  1873,  of  the  Institut  de  Droit  Inter- 
national, has  clearly  and  forcibly  enunciated  his  opinion  on  this 
point.  Writing  in  1891  in  the  Revue  de  Droit  International,  of 
which  he  was  one  of  the  three  founders  as  well  as  editor-in-chief 
for  many  years,  he  discusses  the  agreement  between  France  and 
the  Netherlands  in  1888,  which  those  two  Nations  modified  two 
years  later,  to  submit  to  the  Emperor  of  Russia  as  arbitrator  their 
difference  over  the  frontier  line  between  French  and  Dutch  Guiana. 
In  the  convention  as  amended  in  1890  it  was  provided  that  the 
arbitrator  "in  case  he  did  not  reach,  after  an  examination,  to 
designate  as  a  frontier  one  of  the  two  rivers  mentioned  in  the 
convention  of  1888,  he  was  eventually  authorized,  for  an  inter- 
mediary solution,  to  adopt  and  decide  upon  another  boundary 
which  would  pass  through  the  contested  territory."  This  new 
agreement,  whereby  the  arbitrator  was  invested  with  authority, 
in  case  he  could  not  decide  in  favor  of  the  boundary  claimed  by 
one  or  the  other  of  the  two  Powers,  to  impose  upon  the  two 
Nations  a  compromise,  was  criticised  severely  in  the  States  General 
of  the  Netherlands,  because  upon  an  arbitration  demanding  from 
the  judge  a  decision  based  upon  the  evidence  and  the  law,  there 

"(1799)  I  C.  Rob.  340,  350. 


13  COLUMBIA  LAW  REVIEW. 

was  grafted  a  mediation.  After  pointing  out  that  two  States  could, 
if  they  wished,  graft  upon  the  powers  of  an  international  arbitrator 
acting  as  a  judge  those  of  a  mediator,  that  is  of  what  is  known  as 
an  aimable  compositeur,  RoHn-Jaequemyns  went  on  to  say: 

"There  is  an  International  Law.  This  Law  grows  either  from 
conventions,  or  from  general  principles  accepted  by  civilized 
Nations.  The  essential  object  of  resorting  to  arbitration  between 
States  is,  not  to  create  that  Law,  but  to  cause  to  be  sought  and 
decided  by  a  temporary  judge  voluntarily  chosen — owing  to  the 
want  of  a  permanent  and  obligatory  jurisdiction — in  what  man- 
ner International  Law  is  applicable  to  a  given  case,  which  is  the 
cause  of  a  disagreement  between  the  parties.  The  States  which 
accept  arbitration  recognize  by  that  very  thing  (and  it  is  that 
which  gives  to  that  procedure  so  great  a  value)  that  their  difference 
is  susceptible  of  being  settled  by  the  rules  of  International  Law, 
either  general  or  conventional.  It  is  to  falsify  that  idea  and  to 
compromise  its  application,  to  admit  beforehand  in  the  agreement 
(compromis)  itself,  the  eventuality  of  a  solution  dictated,  not  by 
the  Law,  but  by  an  arbitrary  appreciation  of  the  conveniences  of 
each  party." 

In  view  of  the  above  expressed  opinion,  especially  the  last  sen- 
tence, it  is  evident  that  in  the  opinion  of  the  founder  of  the  Institut 
de  Droit  International,  by  the  terms  International  Courts  of  Arbi- 
tration  and   International   Arbitrators,    are   meant    International 
Courts  and  International  judges  chosen  to  function  temporarily  so 
as  to  pass  judgment  in  the  light  of  the  Law  of  Nations  upon  some 
designated  case  of  difference  between  two  or  more  Nations,  just 
as  Municipal  Courts  and  Municipal  judges  give  judgment  in  the 
light  of  Municipal  Law  upon  cases  of  difference  between  indi- 
vidual citizens  or  corporations.    There  is,  however,  this  difference 
between  these  two  classes  of  jurisdiction.    International  Courts  of 
Arbitration  and  International  Arbitrators  are  appointed  ad  hoc  to 
judge  particularly  designated  cases,  while  Municipal  Courts  and 
Municipal  judges  are  appointed  with  a  continuing  power  in  the 
exercise  of  a  compulsive  jurisdiction,  to  judge  all  cases  that  may 
be  brought  before  them.    But  in  both  of  these  classes  of  jurisdic- 
tion, in  the  International  as  well  as  in  the  Municipal,  the  Courts 
are  to  decide  according  to  the  Law,  in  the  one  case  according  to 
the  Law  of  Nations,  in  the  other  according  to  Municipal  Law. 

Three  years  later,  Louis  Renault,  the  chief  expert  adviser  upon 
the  Law  of  Nations  to  the  French  Foreign  Office,  in  commenting 


INTERNATIONAL   ARBITRATION.  13 

upon  the  Bering  Sea  Fur  Seal  case,  expressed  his  conception  of 
the  nature  of  international  arbitration.^®     He  says: 

"The  normal  mission  of  arbitrators,  whether  they  are  ap- 
pointed by  Governments  or  by  private  individuals,  is  to  decide  a 
difference,  to  solve  a  question  of  Law  or  fact  concerning  which 
the  parties  are  in  disagreement.  The  arbitrators  must  find,  from 
the  documents  produced,  who  is  wrong  or  who  is  right ;  they  pro- 
nounce a  veritable  judgment." 

Then  commenting  on  the  conclusion  made  public  on  January  lo, 
183 1,  by  the  King  of  the  Netherlands  as  to  the  Anglo-American 
boundary  which  had  been  referred  to  him  to  decide  as  arbiter, 
Renault  says : 

"It  was  not  truly  a  sentence;  the  arbitrator  had  not  fulfilled 
his  mission  which  was  to  judge  and  he  had  done  what  was  not 
asked  of  him;  in  truth  he  had  assumed  the  role  of  a  spontaneous 
mediator,  proposing  a  friendly  solution  of  the  difference." 

Next  discussing  a  boundary  question  between  Great  Britain 
and  Portugal,  in  which  case  the  contending  Nations  agreed  in  case 
the  arbiter,  the  President  of  the  French  RepubUc,  could  not  decide 
entirely  in  favor  of  the  contention  of  one  or  the  other  Nation, 
that  he  should  have  the  right  then  "to  give  such  decision  which, 
in  his  view,  would  offer  an  equitable  solution  of  the  difficulty," 
Renault,  after  remarking  that  this  was  not  a  strict  case  of  medi- 
ation, since  the  sentence  of  the  arbiter  was  to  be  accepted  by  both 
parties,  whatever  it  might  be,"  went  on  to  say:^* 

"Thus  the  two  States,  foreseeing  that  their  difference  perhaps 
could  not  be  settled  by  a  juridical  decision,  and  wishing  neverthe- 
less to  settle  it,  gave  to  the  arbiter  a  special  power  which  went 
beyond  the  ordinary  limits  of  the  competence  of  a  judge." 

Then  again,  after  discussing  the  Bering  Sea  case  and  the 
powers  granted  by  the  two  litigant  Nations  to  the  International 
Court  of  Arbitration  which  sat  in  1893  ^^  Paris  in  judgment  on 
that  case,  Renault  says:^'* 

"Two  persons  may  have  every  reason  to  come  to  an  agreement 
to  form  a  partnership  for  example,  or  to  make  an  exchange;  if 

"L.  Renault,  Une  nouvelle  mission  donnee  aux  arbitres  dans  les  litiges 
internationaux  a  propos  de  I' Arbitrage  de  Behring:  Revue  Generate  de 
Droit  International  Public.     Paris,  1894,  pp.  44-51. 

"Protocole  of  September  25,  1872;  de  Clercq,  Recueil  des  traites  de  la 
France,  V,  XI,  p.  39. 

^Revue  Generate  de   Droit  International  Public,   Paris,   1894,   p.   45. 

''Id.,  p.  50. 


14  COLUMBIA  LAW  RBVIEW. 

they  do  not  do  so,  they  merely  make  use  of  their  natural  liberty, 
and  one  cannot  say  that  there  is  litigation  between  them.  In  case, 
however,  that  they  should  be  anxious  to  come  to  an  understanding 
and  should  appoint  a  third  party  to  define  the  conditions  which 
would  seem  to  him  equitable  for  an  arrangement,  it  would  be 
wrong  to  call  that  third  party  an  arbitrator,  since  his  mission  is 
in  no  manner  that  of  a  judge."  And  then  in  a  foot-note  to  the 
passage  just  cited,  the  learned  French  publicist  further  says : 
"I  know  perfectly  that  arbitration  in  industrial  affairs  is  under- 
stood in  this  sense,  but  it  is  so  used  in  an  inexact  ^vay." 

These  extracts  from  Renault  make  it  clear  that  he  considered, 
at  the  time  he  wrote,  that  an  international  arbitrator  is  a  judge 
and  not  a  reconciler. 

In  a  letter  printed  in  the  London  Times,  January  6,  1896,  pro- 
posing a  peaceful  solution  of  the  Anglo- Venezuelan  crisis,  John 
Westlake,  then  holder  of  the  Whewell  chair  of  International  Law 
in  Cambridge  University,  wrote: 

"It  is  that  of  arbitration,  with  a  restriction  presently  to  be 
mentioned,  combined  with  mediation.  An  arbitrator  can  only  pro- 
nounce a  judgment ;  he  cannot  make  a  recommendation  as  a  medi- 
ator can.  When  England  and  the  United  States  referred  the 
boundary  between  Canada  and  Maine  to  the  arbitration  of  the 
King  of  the  Netherlands,  that  Sovereign  did  not  adjudicate  on 
the  respective  lines  proposed  by  the  parties,  but  proposed  an 
intermediate  one  as  a  compromise,  which  the  United  States  were 
not  bound  to  accept  and  did  not  accept.  Now  in  the  present  case 
it  is  more  than  probable  that  an  arbitrator  would  find  legal  grounds 
enough  for  ruling  out  the  maximum  claims  on  both  sides,  even 
if  he  were  not  prevented  from  entertaining  them  by  the  restriction 
presently  to  be  suggested.  But  it  is  also  probable  that  for  some 
part  of  the  intermediate  region  he  might  be  unable  to  find  any 
legal  grounds  of  decision,  and  that  all  he  could  do  would  be  to 
propose  a  line  of  his  own.  Then,  if  the  parties  had  from  the 
beginning  accepted  him  in  the  character  of  mediator  as  well  as 
in  that  of  arbitrator,  they  would  not  indeed  be  bound  to  accept  a 
line  which  he  did  not  declare  to  be  one  of  legal  obligation,  but 
his  proposal,  made  as  it  would  be  after  hearing  all  that  could  be 
said  on  that  branch  of  the  subject,  would  carry  such  weight  that 
no  party  desirous  of  peace  would  refuse  to  accept  it." 

Westlake,  in  his  treatise  International  Law,  in  contrasting 
arbitration   with   mediation,   says   of   the    former   of   these   two 


INTERNATIONAL   ARBITRATION.  15 

functions  :^°  "The  essential  point  is  that  the  arbitrators  are 
required  to  decide  the  difference — ^that  is,  to  pronounce  sentence 
on  the  question  of  right.  To  propose  a  compromise,  or  to  recom- 
mend what  they  think  best  to  be  done,  in  the  sense  in  which  best 
is  distinguished  from  most  just,  is  not  within  their  province,  but 
is  the  province  of  a  mediator." 

EarHer  in  the  same  work,  in  commenting  on  the  general  divi- 
sion between  the  differences  that  arise  between  Nations  which 
seem  capable  of  being  decided  by  International  Courts  upon  legal 
grounds  and  those  which  because  of  the  great  political  interests 
mvolved  for  the  Nations  concerned,  apparently  cannot  be  so  set- 
tled, Westlake  also  says:-^  "That  distinction  is  not  eo  nomine 
one  of  old  standing  in  the  theoretical  treatment  of  international 
law.  It  has  been  brought  into  prominence  under  the  nomen- 
clature of  legal  or  juridical  and  political  by  the  discussions  and 
negotiations  on  arbitration,  which  is  essentially  a  juridical  pro- 
ceeding."^'^ 

From  the  three  above  quoted  passages  it  is  very  evident  that 
Westlake  considered  that  International  Courts  of  Arbitration  have 
not  the  right  to  arrange  the  cases  which  they  are  called  on  to 
decide  by  a  compromise  arrangement,  that  attribute  being  the 
proper  function  of  mediation.  On  the  contrary,  judging  from  the 
above  quoted  extracts,  Westlake  evidently  considered  that  inter- 
national arbitrators  and  International  Courts  of  Arbitration  in 
passing  upon  differences  between  Nations  were  to  decide  upon 
legal  grounds. 

The  delegates  of  Russia,  among  them  Fedor  de  Martens,  to  the 
First  Hague  Peace  Conference  in  1899  addressed  to  the  representa- 
tives of  the  other  twenty-five  Powers  who  took  part  in  that  gather- 
ing of  the  Nations,  memoranda  in  which  the  merits  of  and  the 
distinction  between  mediation  and  arbitration  were  discussed.^^ 
In  the  first  memorandum,  the  Russians  pointed  out  that  the  dif- 
ference between  good  offices  and  mediation  was  more  theoretical 
than  real,  and  also  that  "mediation  does  not  impugn  in  any  way 
the  principle  of  the  sovereignty,  liberty  and  independence"  of 
states.     In  a  second  memorandum,  the  Russian  delegates  noticed 

^Westlake,  International  Law   (2nd  ed.),  Pt.  i,  p.  354. 

"/d.,  p.  30s. 

'^The  italics  have  been  added  by  the  present  writer. 

*'Blue  Book:  C.  9534  miscellaneous,  No.  1  (1899).  Correspondence 
respecting  the  Peace  Conference  held  at  The  Hague  in  1899.  Presented 
to  both  Houses  of  Parliament  by  Command  of  Her  Majesty,  Oct.,  1899, 
pp.  39-45. 


16  COLUMBIA  LAW  REVIEW. 

the  difference  between  voluntary  and  obligatory  arbitration,  and 
pointed  out  that  "it  is  difficult  to  conceive  of  a  difference  of  a 
legal  nature,  arising  within  the  scope  of  positive  International 
Law  which  could  not  as  a  result  of  an  agreement  between  the 
parties,  be  solved  by  means  of  optional  International  Arbitration." 
Concerning  compulsory  arbitration,  the  Russian  report  pointed  out 
very  wisely  that  it  cannot  be  applied  to  every  kind  of  disputes. 
"There  is  no  government,"  it  says,  "which  would  consent  to  accept 
beforehand  the  obligation  to  submit  to  the  decision  of  the  Tri- 
bunal of  Arbitration  every  difference  which  might  arise  in  the 
domain  of  international  relations  if  it  affected  the  national  honor 
of  the  State,  its  highest  interests  and  its  imprescriptible  wealth. 
Actually,  the  reciprocal  rights  and  obligations  of  States  are  deter- 
mined, in  a  notable  measure,  by  the  general  consensus  of  what  are 
called  political  treaties,  which  are  nothing  else  than  the  temporary 
expression  of  fortuitous  and  transitory  relations  between  the  dif- 
ferent national  forces.  These  treaties  bind  the  freedom  of  action 
of  the  parties  so  long  as  the  political  conditions  which  produced 
them  remain  without  change.  When  these  conditions  change,  the 
rights  and  obligations  resulting  from  these  treaties  necessarily 
change  also.  As  a  general  proposition,  the  conflicts  which  arise 
over  political  treaties  turn  in  most  cases,  not  so  much  on  a  dif- 
ference in  the  interpretation  of  such  and  such  a  rule,  as  on  the 
change  to  be  made  in  the  provisions  of  the  treaty  or  its  complete 
abrogation.  Consequently  the  powers  which  take  an  active  part 
in  the  political  life  of  Europe,  cannot  submit  the  differences  which 
arise  out  of  the  political  treaties  to  a  Court  of  Arbitration,  in  the 
eyes  of  which  what  is  laid  down  by  treaty  would  he  as  binding 
and  inviolable  as  what  is  laid  down  by  the  positive  lazv  is  in  the 
eyes  of  a  national  Court  of  Justice."^*^ 

Thus  in  the  report  presented  by  the  Russian  delegates  to  the 
representatives  of  the  other  nations  who  were  parties  to  the  First 
Hague  Conference,  it  is  distinctly  affirmed  that  an  International 
Court  of  Arbitration,  like  "a  national  Court  of  Justice,"  is,  in 
giving  its  judgment,  bound  by  the  Law,  in  the  one  case  by  the 
Law  of  Nations,  in  the  other  by  the  Municipal  Law  of  the  country 
where  the  National  Court  has  its  seat. 

Last  but  not  least,  the  learned  American  jurist,  John  Bassett 
Moore,  speaking  of  mediation  and  arbitration,   says:^^     "These 

**The  italics  have  been  added  by  the  present  writer. 
^'Moore,  Int.  Law  Digest,  §  1069. 


INTERNATIONAL  ARBITRATION.  17 

methods  are  often  discussed  as  if  they  were  practically  the  same, 
but  in  reality  they  are  fundamentally  different.  Mediation  is  an  ,^ 
advisory,  arbitration  a  judicial,  function.  Mediation  recom- 
mends, arbitration  decides.  While  nations  might  for  this  reason 
accept  mediation  in  various  cases  in  which  they  might  be  unwilling 
or  reluctant  to  arbitrate,  it  is  also  true  that  they  have  often 
settled  by  arbitration  questions  which  mediation  could  not  have 
adjusted. 

"It  is,  for  example,  hardly  conceivable  that  the  question  of 
the  Alabama  claims  could  have  been  settled  by  mediation.  The 
same  thing  may  be  said  of  many  and  indeed  of  most  of  the  great 
number  of  boundary  disputes  that  have  been  settled  by  arbitration. 
The  importance  of  mediation  as  a  form  of  amicable  negotiation 
should  not  be  minimized.  *  *  *  *  Nevertheless,  mediation  is 
merely  a  diplomatic  function  and  offers  nothing  new. 

"Arbitration,  on  the  contrary,  represents  a  principle  as  yet 
only  occasionally  acted  upon,  namely,  the  application  of  law  and 
of  judicial  methods  to  the  determination  of  disputes  between 
nations.  Its  object  is  to  displace  war  between  nations  as  a  means 
of  obtaining  national  redress,  by  the  judgments  of  international 
judicial  tribunals;-^  just  as  private  war  between  individuals,  as  a 
means  of  obtaining  personal  redress,  has,  in  consequence  of  the 
development  of  law  and  order  in  civilized  states,  been  supplanted 
by  the  processes  of  municipal  courts."  In  discussing  the  subject 
of  arbitration,  we  are  therefore  to  exclude  from  consideration, 
except  as  a  means  to  that  end,  mediation,  good  offices,  or  other 
forms  of  negotiation." 

It  is  quite  evident  from  the  foregoing  reviews  of  some  of  the 
leading  dictionaries  as  well  as  the  writings  of  some  of  the  leading 
publicists,  that  the  word  arbitration  in  Municipal  affairs  has  very 
much  changed  its  meaning  and  departed  from  the  use  of  the  word 
as  a  term  of  International  Law.  And  in  this  connection  it  will  be 
useful  to  notice  how  the  meaning  of  another  word  has  changed  as 
the  years  have  rolled  by. 

Thus  the  word  State  as  used  in  the  North  American  Confed- 
eration between  1781  and  1789,  and  since  the  adoption  of  the 
Constitution,  has  changed  its  meaning.  As  applied  to  the  original 
thirteen  States  of  the  Confederation  before  1789,  the  word  State 
meant  a  member  of  the  family  of  Nations,  a  sovereign  State,  for 

""The  italics  have  been  added  by  the  present  writer. 
^Ut  supra,  n.  26. 


18  COLUMBIA  LAW  REVIEW. 

originally  the  thirteen  States  constituted  a  Confederation  composed 
of  thirteen  member  States.  To-day,  however,  the  word  State  as 
applied  to  the  forty-eight  members  of  the  Federal  Union  does  not 
mean  the  same  thing  that  it  did  in  the  times  of  the  Confederation. 
For  neither  Pennsylvania,  nor  New  York  nor  any  other  of  the 
forty-eight  States  composing  the  United  States  of  America  to-day 
is  a  member  of  the  family  of  Nations,  as  France  is  a  State  and  a 
member  of  the  family  of  Nations.  These  forty-eight  States 
together  form  not  forty-eight  Nations,  but  only  one  single  Nation. 
But  the  change  in  the  meaning  of  the  word  State  in  the  historic 
development  and  evolution  by  which  the  original  Confederation  of 
thirteen  States  became  the  one  Nation  of  to-day  known  as  the 
United  States  of  America,  does  not  alter  the  historic  fact,  that 
originally  as  applied  to  the  thirteen  States  the  word  State  meant 
thirteen  separate  and  distinct  members  of  the  family  of  Nations, 
while  to-day  the  same  word  means  the  various  units  of  the  North 
American  Union,  that  is  the  component  parts  of  but  one  single 
member  of  the  family  of  Nations. 

11. 

It  has  been  urged  of  late,  that  an  International  Arbitrator  is 
not  bound  by  the  Law,  as  a  Judge,  sitting  in  a  regularly  constituted 
Court,  is  bound  by  the  Law.  In  other  words,  that  an  International 
Arbitrator  can  exercise,  in  reaching  his  opinion  in  the  case  sub- 
mitted to  him  for  a  settlement,  his  own  ideas  of  what  would  be  a 
just  judgment,  and  so  is  likely  to  try  to  settle  the  case  by  a  com- 
promise which  will  please  in  part  both  sides  to  the  dispute; 
while  on  the  contrary,  a  Judge,  sitting  in  his  Court,  cannot  allow  his 
own  personal  feelings  of  justice  to  influence  his  judgment,  but 
must  rigorously  base  his  opinion  upon  the  Law  applicable  to  the 
case  before  him.  As  a  result  of  the  above  reasoning,  it  is  main- 
tained by  some  writers  and  practitioners  that  an  International  Arbi- 
trator tends  to  become  a  reconciler,  that  is,  a  mediator,  a  com- 
posateur  aimable,  in  contrast  with  the  Municipal  Judge,  who  al- 
ways gives  a  judicial  opinion  based  on  legal  reasoning. 

That  the  Judges  of  Municipal  Courts,  even  the  most  learned 
and  distinguished  who  have  sat  in  the  highest  Tribunals  in  the 
world,  never  allow  either  their  own  ideas  or  consciences  to  influ- 
ence them  in  arriving  at  their  opinions  as  to  what  most  closely  is 
justice  in  each  particular  case,  is,  however,  an  absurdity  of  state- 
ment, which  even  a  cursory  examination  of  the  cases  disproves. 


INTERNATIONAL   ARBITRATION.  19 

Take,  for  example,  the  rise  and  developrnent  of  the  rule  of  the 
Law  of  Nations  that  the  jurisdiction  of  the  Courts  of  Nations  with 
a  maritime  front  on  the  open  sea  extends  to  the  distance  of  one 
marine  league,  or  three  miles,  from  low  water.  It  was  during  an 
embassy  sent  by  the  United  Netherlands  to  the  English  King 
James  the  First,  in  1610,  that  the  idea  of  limiting  the  exclusive 
sovereignty  of  a  maritime  State  to  the  distance  of  a  cannon  shot 
from  its  shore  was  first  publicly  put  forward.  This  development 
was  an  incident  in  the  long  drawn  out  battle  between  the  English 
and  the  Hollanders  over  the  right  to  fish  which  the  latter  claimed 
to  exercise,  and  did  exercise,  in  the  sea  between  England  and  the 
continent.  "No  prince,"  the  Dutch  envoys  told  the  English  repre- 
sentatives, "can  Challenge  further  into  the  Sea  than  he  can  Com- 
mand with  a  Cannon,  except  Gulfes  within  their  Land  from  one 
point  to  another."^*  While  the  idea  of  placing  a  limit  on  the  exclu- 
sive seaward  jurisdiction  of  a  State  doubtless  had  occurred  before, 
it  seems  then  for  the  first  time  to  have  taken  concrete  form  in  the 
cannon  shot  limit.  Perhaps  it  originated  in  the  fertile  brain  of 
Grotius,  though  he  was  not  a  member  of  the  Embassy,  for  in  a 
work  he  wrote  in  1618,  which  was  published  at  Paris  in  1640, 
Grotius  refers  to  this  principle  of  the  cannon  shot  having  been 
urged  on  the  English.^*  Later  the  idea  that  a  reasonable  limit 
should  be  placed  upon  the  power  of  a  maritime  State  to  control 
the  sea  coast  adjoining  its  coast  line  was  advocated  by  another 
Dutch  publicist,  hardly  less  renowned  than  Grotius,  Cornelius  van 
Bynkershoek.  Then  the  idea  was  slowly  taken  up  with  favor,  with 
varying  distances,  by  various  jurists,  both  pubHcists  and  judges. 
The  three  mile  limit,  as  the  equivalent  of  the  cannon  shot  from 
shore,  was  first  advanced  by  a  Government,  apparently,  in  a  note 
which  Thomas  Jefferson,  the  Secretary  of  State  of  the  United 
States  of  America,  wrote  on  November  8,  1793,  to  M.  Genet,  the 
French  envoy.^°  The  three  mile  limit  next  received  a  great  impetus 
from  the  decisions  of  Sir  Willam  Scott,  later  Lord  Stowell,  sitting 
in  the  High  Court  of  Admiralty  of  England.    By  his  judgments 

'"Thomas  Wemyes  Fulton,  The  Sovereignity  of  the  Sea,  Edinburg,  191 1, 
p.  156. 

^Apologeticus  eorum  qui  HoUandiae  Westfrisiaeque  et  vicinis  quibusdam 
nationibus  ex  legibus  praefuerunt  ante  mutationem  quae  evenit  anno  1618. 
Scriptus  ab  Hugone  Grotio,  I.  C;  Paris,  1640  P.  383. 

^American  State  Papers:  Foreign  Relations,  Washington,  1832,  Vol.  I., 
p.  183. 


20  COLUMBIA  LAW  RBVIBW. 

in  the  two  cases  of  the  Twee  Gehroeders^^  and  the  case  of  the 
Anna,^^  he  gave  the  judicial  sanction  of  the  greatest  maritime  power 
of  the  world  to  the  three  mile  limit  of  the  territorial  sea,  and  in- 
troduced that  limit  into  English  Law.  In  the  first  Twee  Gehroeders 
case,  that  vessel  was  taken  on  August  14,  1799,  on  a  voyage  from 
Emden  to  Amsterdam,  which  latter  place  was  under  blockade. 
She  was  captured  on  the  Groningen  Wat,  near  the  coast  of  East 
Friesland.  The  Prussian  Government  suggested  that  the  vessel 
was  captured  within  the  protection  of  Prussian  territory.  In  con- 
sidering the  extent  of  the  Prussian  jurisdiction  over  the  sea  adjoin- 
ing its  coast.  Sir  William  Scott  said,  in  1800:^^ 

"She  was  lying  in  the  Eastern  branch  of  the  Hems,  within  what 
may  I  think  be  considered  as  a  distance  of  three  miles,  at  most, 
from  Bast  Frieslands;  an  exact  measurement  cannot  easily  be 
obtained;  but  in  a  case  of  this  nature,  in  which  the  Court  would 
not  willingly  act  with  an  unfavorable  minuteness  towards  a  neu- 
tral State,  it  will  be  disposed  to  calculate  the  distance  very  liberally ; 
and  more  especially,  as  the  spot  in  question  is  a  sand  covered  with 
water  only  on  the  flow  of  the  tide,  but  immediately  connected 
with  the  land  of  Bast  Friesland,  and  when  dry,  may  be  considered 
as  making  part  of  it.  I  am  of  opinion,  that  the  ship  was  lying 
within  those  limits,  in  which  all  direct  hostile  operations  are  by 
the  Law  of  Nations  forbidden  to  be  exercised." 

The  second  Twee  Gehroeders  case,  decided  in  1801,  arose  on 
the  capture  of  a  number  of  vessels  bound  from  Hamburg  to  Am- 
sterdam, which  latter  port  was  under  blockade.  In  the  decision, 
Sir  William  Scott  held  :^*  "In  the  sea,  out  of  the  reach  of  cannon 
shot,  universal  use  is  presumed." 

In  the  case  of  the  Anna,  captured  at  the  mouth  of  the  Missis- 
sippi River,  and  decided  in  1805,  when  the  same  learned  authority 
held  that  the  territorial  sea  should  be  measured,  not  from  the 
mainland,  but  from  some  low  lying  islands  or  mudbanks  at  the 
mouth  of  the  river,  Sir  William  Scott  cited  one  of  the  famous 
maxims  of  Bynkershoek  and  translated  it  into  three  miles  from 
the  shore.    He  said  :^^ 

"We  all  know  that  the  rule  of  law  on  this  subject  is  'terrae 
dominium  finitur,  ubi  finitur  armorum  vis,'  and  since  the  introduc- 

"Twee   Gehroeders,  Alberts  master    (1800)    3  C.   Rob.    162,  and  Twee 
Gebroeders,  Northolt  master  (1801)  id.  336. 
^""The  Anna  (1805)  5  C.  Rob.  373- 

''Twee  Gebroeders,  Alberts  master  (i8oo)  3  C.  Rob.  162,  at  p.  163. 
'*3  C.  Rob.  336,  at  p.  339- 
»5  C.  Rob.  373,  at  p.  385c. 


INTERNATIONAL  ARBITRATION.  21 

tion  of  fire-arms,  that  distance  has  usually  been  recognized  to  be 
about  three  miles  from  the  shore." 

When  Sir  William  Scott  gave  those  decisions  there  was  no 
fixed  and  hard  rule  of  the  Law  of  Nations  that  obliged  him  to 
decide  as  he  did.    On  the  contrary,  he  exercised  his  own  ideas,  ar- 
riving at  his  decisions  of  what  would  be  most  just  in  these  cases. 
In  giving  these  three  judgments  he  was  not  governed  by  a  rule  of 
the  Law  of  Nations  recognized  by  all  Nations,  but,  on  the  con- 
trary, he  gave  the  English  interpretation  on  that  point,  and  so 
helped  to  develop  the  Law  of  Nations.    The  three  mile  limit  came 
to  be  recognized  in  the  larger  part  of  the  world  more  and  more  as 
the  extent  of  the  territorial  sea.     There  were  exceptions  to  it  a 
century  ago,  as  there  are  exceptions  to  it  to-day.     But  by  the 
year  1876  it  had  gained  the  support  of  the  great  majority  of  pub- 
licists, and  the  support  of  many  governments  through  the  acts 
of  their  officials  in  one  way  or  another,  including  that  of  England 
as  expressed  in  the  judgments  of  Lord  Stowell  in  her  High  Court 
of  Admiralty.     Then  in  the  year  1876  occurred  the  case  of  The 
Queen  v.  Keyn,  better  known  as  the  case  of  the  Pranconia.    That 
case  turned  on  whether  the  jurisdiction  of  the  English  Courts  ex- 
tended over  the  territorial  sea.   Briefly,  that  case  was  as  follows : 
The  Franconia,  a  German  vessel  bound  from  Hamburg  to  St. 
Thomas,  sank,  less  than  three  miles  from  the  British  coast,  near 
Dover,  the  Strathclyde,  a  British  vessel,  killing  as  a  result  a  woman, 
a  British  subject,  who  was  on  board  of  the  British  vessel.     The 
crucial  question  in  the  case  when  it  came  up  on  appeal  from  the 
Central  Criminal  Court,  was  whether  that  court  had  jurisdiction 
to  try  Keyn,  a  foreigner,  who  was  the  captain  of  the  Franconia. 
By  a  majority  of  one,  seven  judges  against  six,  the  Court  of  Ex- 
chequer Division   reversed   the   lower  court,   and   held  that  the 
prisoner,  a  foreigner  on  a  foreign  ship  within  the  marine  belt,  was 
not  amenable  to  the  Law  of  England,  but  only  to  that  of  his  own 
country.     The  minority  judges  practically  agreed  that — as  shown 
by  the  custom  and  usages  of  Nations  and  proclaimed  by  the  writ- 
ings of  the  publicists — the  rule  of  the  Law  of  Nations,  by  which 
the  sovereignty  of  Nations  having  a  sea  coast  was  extended  sea- 
ward over  the  marine  belt  known  as  territorial  waters,  had  ex- 
tended the  sovereignty  of  England  over  the  territorial  sea  adjourn- 
ing her  coast,  and  so  had  placed  the  marine  belt  under  the  jurisdic- 
tion of  her  Courts.     That  view  was  well  stated  by  Chief  Justice 
Coleridge,  who  said  in  part  :^® 

''The  Queen  v.  Keyn  (1876)  2  Ex.  D.  63,  at  p.  153. 


22  COLUMBIA  LAW  RBVIBW. 

"Now  my  brothers  Brett  and  Lindley  have  shown  that  by  a 
consensus  of  writers,  without  one  single  authority  to  the  contrary, 
some  portion  of  the  coast  waters  of  a  country  is  considered  for 
some  purposes  to  belong  to  the  country  the  coasts  of  which  they 
wash.  I  concur  in  thinking  that  the  discrepancies  to  be  found  in 
these  writers  as  to  the  precise  extent  of  the  coast  waters  which 
belong  to  a  country  (discrepancies,  after  all,  not  serious  since  the 
time  at  least  of  Grotius)  are  not  material  in  this  question;  because 
they  all  agree  in  the  principle  that  the  waters,  to  some  point  be- 
yond low-water  mark,  belong  to  the  respective  countries,  on  grounds 
of  sense  if  not  of  necessity,  belong  to  them  as  territory  or  sover- 
eignty, in  property,  exclusively,  so  that  the  authority  of  France  or 
Spain,  of  Holland  or  England,  is  the  only  authority  recognized  over 
the  coast  waters  which  adjoin  these  countries.  This  is  established 
as  solidly  as,  by  the  nature  of  the  case,  any  proposition  of  inter- 
national law  can  be.  *  *  *  The  law  of  nations  is  that  col- 
lection of  usages  which  civilized  states  have  agreed  to  observe  in 
their  dealings  with  one  another.  What  these  usages  are,  whether 
a  particular  one  has  or  has  not  been  agreed  to,  must  be  matter  of 
evidence.  Treaties  and  acts  of  state  are  but  evidence  of  the  agree- 
ment of  nations,  and  do  not  in  this  country  at  least  per  se  bind  the 
tribunals.  Neither,  certainly,  does  a  consensus  of  jurists ;  but  it  is 
evidence  of  the  agreement  of  nations  on  international  points;  and 
on  such  points,  when  they  arise,  the  English  Courts  give  effect,  as 
part  of  English  Law,  to  such  agreement." 

The  majority  judges,  however,  reversed  the  lower  Court,  and 
held  that  a  rule  of  the  Law  of  Nations,  no  matter  how  many 
learned  jurists  agreed  in  proclaiming  it  a  rule  of  that  Law,  nor  no 
matter  how  many  other  Nations  might  agree  among  themselves 
that  such  a  rule  was  a  part  of  the  Law  of  Nations,  was  not  binding 
upon  British  Courts  until  the  British  Parliament  had  enacted  it  as 
a  rule  of  Law.  While  the  majority  of  judges  were  not  altogether 
unanimous,  most  of  them  agreed  with  the  view  expressed  by  Lord 
Chief  Justice  Cockburn,  that  the  extent  of  the  realm  of  England  is 
a  question  of  English  and  not  International  Law. 

Lord  Chief  Justice  Cockburn  said  :^^ 

"Can  a  portion  of  that  which  was  before  high  sea  have  been 
converted  into  British  territory  without  any  action  on  the  part  of 
the  British  Government  or  legislature — by  the  mere  assertions  of 
writers  on  public  law — or  even  by  the  assent  of  other  nations  ? 

"And  when  in  support  of  this  position,  or  of  the  theory  of  the 
three  mile  zone  in  general,  the  statements  of  the  writers  on  inter- 
national law  are  relied  on,  the  question  may  well  be  askd,  upon 
what  authority  are  these  statements  founded  ?    When  and  in  what 

"The  Queen  v.  Keyn  (1876)  2  Ex.  D.'63,  at  p.  202. 


INTBRNATIONAl  ARBITRATION.  23 

manner  have  the  nations,  who  are  to  be  affected  by  such  a  rule  as 
these  writers,  following  one  another,  have  laid  down,  signified 
their  assent  to  it  ?  To  say  nothing  of  the  difficulty  which  might  be 
found  in  saying  to  which  of  these  conflicting  opinions  such  assent 
had  been  given." 

Further  on  in  his  opinion  Lord  Cockburn  said  that  writers  on 
the  Law  of  Nations,  "however  valuable  their  labours  may  be  in 
elucidating  and  ascertaining  the  principles  and  rules  of  Law,  can- 
not make  the  Law."  Even  the  unanimous  assent  of  the  Nations 
that  the  three  mile  zone  of  so  called  territorial  waters  around  Great 
Britain  was  under  British  jurisdiction,  he  maintained,  would  not 
justify  British  Tribunals  in  recognizing,  "without  an  Act  of  Par- 
liament, what  would  practically  amount  to  a  new  law." 

Thus  thirteen  British  judges  sitting  together  on  a  case,  after 
weighing  the  facts,  the  opinions  of  jurists  and  publicists  and  the 
acts  of  other  Nations,  were  unable  to  agree  and  divided  almost 
equally  upon  the  question  whether  a  rule  of  the  Law  of  Nations 
could  become  grafted  upon  the  Law  of  England  through  the  long 
continued  customs  and  acts  of  many  Nations  as  evinced  by  treaties 
and  other  diplomatic  acts,  and  the  writings  of  the  publicists;  or 
whether  it  required  an  Act  of  Parliament  to  make  a  rule  of  the 
Law  of  Nations  binding  on  British  Courts.  The  decision  de- 
stroyed the  marine  belt  so  far  as  the  jurisdiction  of  British  Tri- 
bunals was  concerned,  and  the  Law  as  proclaimed  by  the  decision 
of  the  Court  had  to  be  changed  to  meet  the  requirements  of  the 
future  obligations  of  Great  Britain  as  a  member  of  the  family  of 
Nations,  by  the  Territorial  Waters  Jurisdiction  Act  of  1878.  Thus 
m  that  important  case  thirteen  judges,  when  called  upon  to  pass 
upon  a  case  for  which  no  exact  precedent  could  be  found  among 
English  decisions,  had  to  use,  each  individually,  in  making  up  their 
minds  as  to  whether  the  jurisdiction  of  British  Courts  extended 
over  the  marine  belt  of  International  Law,  their  own  best  judg- 
ments. As  a  result,  far  from  agreeing,  they  divided  into  two 
almost  evenly  balanced  groups,  and  neither  of  these  two  groups 
was  altogether  unanimous  in  the  processes  by  which  they  arrived 
at  their  conclusions.  This  is  a  splendid  example  showing  how 
judges  on  the  Bench  not  only  do  exercise  their  own  individual 
ideas  in  arriving  at  their  opinions,  but  also  on  many  occasions  are 
absolutely  forced  by  the  exigencies  of  the  case  before  them  to  call 
upon  and  sometimes  even  to  rely  upon  their  own  consciences  in 
deciding  what  will  be  a  just  decision. 


24  COLUMBIA  LAW  RBVIBW. 

Take  another  case,  one  that  was  appealed  to  and  heard  by 
perhaps  the  most  notable  Municipal  Tribunal  in  the  world,  the 
Supreme  Court  of  the  United  States,  the  case  known  under  the 
name  of  the  Paquete  Habana.^^ 

At  the  beginning  of  the  war  in  1898  between  the  United  States 
and  Spain,  two  Spanish  fishing  vessels,  the  Paquete  Habana  and 
the  Lola,  were  taken  by  the  American  blockading  squadron  off  the 
coast  of  Cuba  and  condemned  by  a  Federal  District  Court  as  prizes 
of  war.  The  case  was  appealed  to  the  Federal  Supreme  Court. 
The  nine  members  of  that  Court  divided  into  two  groups,  of  six 
to  three.  The  majority,  Mr.  Justice  Gray  delivering  the  opinion  of 
the  Court,  held,  after  a  careful  and  exhaustive  review  of  the  works 
of  the  publicists  and  the  decisions  of  the  Supreme  Court  and  other 
Tribunals,  that  through  custom  a  rule  of  International  Law  had 
grown  up  exempting  from  capture  in  times  of  war  the  fishing 
vessels  of  belligerents  who  were  merely  pursuing  their  calling. 
The  exemption  does  not  hold  good.  Justice  Gray  said,  if  the  fishing 
vessels  engage  in  hostilities  in  any  way,  nor  does  it  apply  to  fish 
taken  in  the  deep  sea  so  far  from  land  that  the  fish  cannot  be 
brought  to  market  fresh,  but  must  be  salted  or  otherwise  cured. 
President  McKinley,  in  his  proclamation  of  April  26,  1898,  made 
no  specific  mention  of  fishing  vessels.  "But  the  proclamation 
clearly  manifests,"  Justice  Gray  says,^^  "the  general  policy  of  the 
Government  to  conduct  the  war  in  accordance  with  the  principles 
of  international  law  sanctioned  by  the  recent  practice  of  nations." 

Chief  Justice  Fuller,  Justices  Harlan  and  McKenna  concurring 
with  him,  gave  the  dissenting  opinion  of  the  minority  of  three 
judges.  He  did  not  agree  that  there  was  any  such  established  rule 
of  the  Law  of  Nations.  In  his  opinion,  after  referring  to  the  deci- 
sion of  the  District  Court  condemning  the  two  vessels  and  their 
cargoes,  because  the  lower  Court  was  not,  as  he  quoted  the  opinion 
of  the  lower  Court,^°  "satisfied  that  as  a  matter  of  law,  without  any 
ordinance,  treaty  or  proclamation,  fishing  vessels  of  this  class  are 
exempt  from  seizure,"  the  Chief  Justice  went  on  to  say  :*^ 

"This  Court  holds  otherwise,  not  because  such  exemption  is  to 
be  found  in  any  treaty,  legislation,  proclamation  or  instruction, 
granting  it,  but  on  the  ground  that  the  vessels  were  exempt  by 

=*(i9oo)  175  U.  S.  677. 
=»At  p.  712. 
"At  p.  715- 
"At  p.  715- 


INTBRNATIONAL   ARBITRATION.  25 

reason  of  an  established  rule  of  international  law  applicable  to 
them,  which  it  is  the  duty  of  the  court  to  enforce. 

"I  am  unable  to  conclude  that  there  is  any  such  established 
international  rule." 

There,  speaking  for  the  minority  of  the  Tribunal,  the  Chief 
Justice  absolutely  disagreed  with  the  judgment  of  the  Court  given 
by  Justice  Gray. 

Then  further  in  his  dissenting  opinion,  the  Chief  Justice  said  :*^ 

"In  truth,  the  exemption  of  fishing  craft  is  essentially  an  act  of 
grace,  and  not  a  matter  of  right,  and  it  is  extended  or  denied  as  the 
exigency  is  believed  to  demand. 

"It  is,  said  Sir  William  Scott,  *a  rule  of  comity  only,  and  not  of 
legal  decision.'  " 

After  citing  Hall,  Freeman  Snow,  and  other  authorities,  the 
Chief  Justice  continued :" 

"In  my  judgment,  the  rule  is  that  the  exemption  from  the  rigors 
of  war  is  in  the  control  of  the  Executive.  He  is  bound  by  no 
immutable  rule  on  the  subject.  It  is  for  him  to  apply,  or  to 
modify,  or  to  deny  altogether  such  immunity  as  may  have  been 
usually  extended." 

In  this  case,  the  Court  had  to  decide  whether  there  had  grown 
up  by  custom  through  centuries  of  practice  a  rule  of  the  Law  of 
Nations  exempting  fishing  vessels  when  peacefully  engaged  in 
their  calling  from  capture  as  prizes  of  war,  or  whether  there  had 
merely  developed  a  rule  of  courtesy  among  Nations,  enabling  the 
executive  of  each  Power  to  exempt  from  capture  the  fishing  ves- 
sels of  an  enemy  country.  And  the  members  of  that  august 
Tribunal  were  not  agreed  in  their  conclusion,  the  majority  deciding 
that  there  had  grown  up  through  long  continued  custom  and  usage 
such  a  rule  of  International  Law,  while  the  minority  just  as  firmly 
held  that  there  had  not. 

To  take  the  practice  of  a  Municipal  Court  as  an  example,  let 
us  look  at  a  notable  Pennsylvania  case.  The  Pennsylvania 
Supreme  Court  reversed  its  own  earlier  judgments  in  the  case  of 
Sanderson  v.  The  Pennsylvania  Coal  Company  concerning  the 
flow  of  water  in  the  anthracite  coal  districts  of  Pennsylvania.** 

"At  p.  719. 

*^At  p.  720. 

"Sanderson  v.  The  Pennsylvania  Coal  Co.  (1878)  86  Pa.  401;  Pennsyl- 
vania Coal  Co.  V.  Sanderson  (1880)  94  Pa.  302;  Sanderson  v.  Pennsylvania 
Coal  Co.  (1883)  102  Pa.  370;  The  Pennsylvania  Coal  Co.  v.  Sanderson 
(1886)   113  Pa.  126. 


26  COLUMBIA  LAW  REVIEW. 

Why?  Because,  owing  to  the  development  of  coal  as  a  factor  in 
the  modem  commercial  world,  there  was  a  difference  of  opinion 
from  the  first  among  the  judges  composing  the  Court  as  to  how 
the  case  should  be  decided.  It  was  a  case  for  damages  caused  by 
the  water  pumped  out  of  a  mine  that  flowed  into  a  stream  which 
was  thereby  polluted.  The  case  was  argued  four  times  before  the 
Supreme  Court  of  the  State  of  Pennsylvania.  Not  a  single  judge 
changed  his  opinion,  but  gradually  as  the  personnel  of  the  Tri- 
bunal changed,  the  Court  changed  its  view,  and  so  reversed  itself. 
The  final  decision  of  the  Court  was  practically  based  on  the  kernel 
of  the  dissenting  opinion  of  Justice  Paxson,  the  first  time  the  case 
came  before  the  Court,  when  he  said :  "The  plaintiffs  knew  when 
they  purchased  their  property  that  they  were  in  a  mining  region." 

Thus  in  that  important  case  which  was  taken  four  times  for 
decision  to  the  highest  Tribunal  of  the  State,  the  members  of  the 
Court  from  the  start  were  unable  to  arrive  at  a  unanimous  deci- 
sion. They  persistently  disagreed,  some  deciding  for  one  party  to 
the  case,  and  others  for  the  other  contestant. 

In  addition,  in  considering  the  latitude  allowed  to  judges  in 
exercising  their  own  individual  ideas  and  conceptions  of  what 
would  constitute  justice  in  any  given  case,  it  is  well  to  remember 
that  the  English  Common  Law,  owing  in  many  instances  to  the 
rigidity  of  its  rules  and  the  inability  in  earlier  times  to  change  and 
amend  it,  caused  the  rise  of  Equity  and  the  Court  of  Equity,  which 
could  afford  relief  in  cases  where  the  Common  Law  could  not. 
And  to-day  in  many  jurisdictions  the  two  systems  of  jurisprudence 
have  been  consolidated,  the  Courts  in  some  jurisdictions  sometimes 
sitting  as  Courts  of  the  Common  Law,  sometimes  as  Courts  of 
Equity,  while  in  other  jurisdictions,  as  for  example  in  Pennsyl- 
vania, the  Courts  sit  as  Tribunals  which  concurrently  administer 
both  the  Common  Law  and  the  Law  of  Equity  in  arriving  at  their 
decisions.  Thus  when  the  judges  of  the  Common  Law  Courts 
were  so  bound  by  the  Law  that  they  could  not  in  many  cases  exer- 
cise their  personal  common  sense  and  conscience,  relief  for  such  a 
situation  was  sought  by  combining,  in  varying  decrees  in  different 
jurisdictions,  with  their  functions  as  Common  Law  judges  the 
powers  of  chancellors  of  Equity,  and  so  allowing  to  the  Judges 
greater  flexibiHty  in  arriving  at  their  decisions  than  could  have 
been  possible  had  they  remained  strictly  Common  Law  judges. 

Further,  it  must  be  remembered  that  the  judges  of  Municipal 
Courts  who  have  acted  as  judges  in  Prize  Courts,  in  their  interpre- 


INTERNATIONAL   ARBITRATION.  27 

tation  of  the  Law  of  Nations  have  leaned  undoubtedly  towards 
the  view  that  favored  in  the  long  run  their  own  Country.  For 
instance,  take  the  judgments  of  Lord  Stowell,  when  he  was  in 
great  measure  forming  the  Law  of  the  Sea, — can  anyone  doubt 
that  in  rendering  his  judgments  he  was  influenced  in  some  degree 
by  the  interests  of  England  as  a  belligerent?  So,  too,  the  Su- 
preme Court  of  the  United  States  during  the  Civil  War,  in  the 
matter  of  continuous  voyages,  undoubtedly  leaned  towards  the 
point  of  view  that  favored  the  Union  cause.  And  so  also  with 
the  Tribunals  of  other  Nations.  For  after  all,  judges,  even  the 
most  conscientious  of  them  all,  are  human  beings.  Such  personal 
views  are  easier  of  application  in  the  earlier  and  formative  period 
of  the  Law,  whether  Municipal  or  International,  than  when  the 
Law  has  reached  a  highly  developed  stage.  Nevertheless,  even 
when  the  Law  is  highly  developed,  the  personal  feelings  and  ideas 
of  each  judge  as  to  what  constitutes  justice  in  each  case  counts 
for  something,  more  or  less  according  to  the  character  of  the  indi- 
vidual judge  and  the  circumstances  of  each  case. 

From  the  three  cases  of  the  Queen  v.  Keyn,  the  Paquete 
Habana  and  Sanderson  v.  The  Pennsylvania  Coal  Company,  that 
have  been  reviewed  above,  it  is  evident  that  Municipal  judges,  sit- 
ting together  in  the  same  Municipal  Courts,  frequently  do  not 
agree  as  to  the  proper  judgments  to  be  rendered  in  the  cases  sub- 
mitted to  them  for  decision.  It  may  be  urged,  however,  in  all 
cases  where  the  judges  of  a  Municipal  Tribunal  disagree  as  to 
their  judgments  upon  a  case  before  them,  that  they  all  of  them  have 
given  a  decision  in  favor  of  one  side  or  the  other,  and  that  they 
do  not  agree  upon  a  compromise  with  the  view  of  giving  some- 
thing to  each  contestant  to  a  case  so  as  to  reconcile  both  parties  to 
the  judgment  of  the  Court.  In  other  words,  that  in  those  cases 
where  the  judges  of  Municipal  Courts  fail  to  agree  in  their  opin- 
ions as  to  the  case  before  them,  they  disagree  upon  legal  grounds, 
and  each  judge  or  group  of  judges  in  giving  a  decision  favorable 
to  one  side  or  the  other,  does  not  seek  to  find  in  his  or  their  judg- 
ment a  happy  medium  pleasing  to  both  sides  of  the  case  argued  at 
the  Bar. 

Cases,  however,  have  been  tried  in  Municipal  Tribunals  when 
the  judges  of  such  Courts,  just  as  much  as  the  members  of  some 
International  Courts  of  Arbitration,  have  sought  to  settle  cases 
before  them  upon  the  basis  of  a  compromise  between  the  con- 
testants rather  than  by  handing  down  a  decision  founded  upon  pure 


28  COLUMBIA  LAW  RBVIBW. 

legal  reasoning  which  is  clearly  cut  in  favor  of  one  side  or  the 
other. 

During  the  great  American  Civil  War  of  1861-1865,  the 
Supreme  Court  of  the  United  States  had  many  cases  brought  to 
its  Bar  involving  the  principle  of  continuous  voyages.  One  of 
these  was  the  case  of  The  Bermuda}^  That  vessel,  before  her 
capture,  had  made  a  voyage  bound  ostensibly  from  London  to 
Bermuda.  Eventually  she  ran  the  blockade,  maintained  by  the 
United  States  of  the  Confederate  coast,  to  Savannah.  On  that 
voyage  she  had  a  cargo  that  would  have  been  of  great  value  in 
any  of  the  Confederate  ports.  She  returned  successfully  to  Eng- 
land. On  her  first  outward  voyage  from  England,  while  Haigh,  a 
British  subject,  was  her  apparent  owner,  he  had  given  a  power  of 
attorney  to  sell  the  ship  to  two  inhabitants  of  Charleston,  South 
Carolina. 

After  her  return  to  England,  she  received  at  Liverpool  prepara- 
tory to  a  second  voyage,  a  cargo  under  the  direction  of  Eraser, 
Trenholm  and  Co.,  a  firm  having  connections  in  Charleston.  On 
her  second  voyage  The  Bermuda  was  bound  again  ostensibly  for 
Bermuda.  The  vessel  was  captured  by  a  Federal  cruiser  on  the 
high  seas  and  sent  into  Philadelphia.  After  both  the  ship  and 
cargo  had  been  condemned  by  the  District  Court  as  good  prizes, 
the  case  was  appealed  to  the  Federal  Supreme  Court,  where  the 
judgment  of  the  lower  Court  was  affirmed. 

Chief  Justice  Chase  in  giving  the  opinion  of  the  Court  said  :*' 

"Now,  what  were  the  marks  by  which  the  conveyance  of  con- 
trabrand  on  the  Bermuda  was  accompanied?  First,  we  have  the 
character  of  the  contrabrand  articles,  fitted  for  immediate  military 
use  in  battle,  or  for  the  immediate  civil  service  of  the  rebel  govern- 
ment; then  the  deceptive  bills  of  lading  requiring  delivery  at 
Bermuda,  when  there  was  either  no  intention  to  deliver  at  Ber- 
muda at  all,  or  none  not  subject  to  be  changed  by  enemies  of  the 
United  States;  then  the  appointment  of  one  of  these  enemies  as 
master,  necessarily  made  with  the  knowledge  and  consent  of 
Haigh,  if  he  was  owner;  then  the  complete  surrender  of  the  vessel 
to  the  use  and  control  of  such  enemies,  without  even  the  pretence 
of  want  of  knowledge,  by  the  alleged  owner,  of  her  destined  and 
actual  employment."  The  Bermuda  was  justly  liable,  the  Chief 
Justice  continued,  to  condemnation  for  the  carriage  of  contraband 
goods  to  a  belligerent  port  under  circumstances  of  fraud  and  bad 

"(1865)  3  Wall.  514. 
"At  p.  557- 


INTERNATIONAL   ARBITRATION.  29 

faith  which  made  the  owner  Hable  and  responsible  "for  unneutral 
participation  in  the  war."*^ 

The  case  of  The  Hart,^^  tried  soon  after  that  of  The  Bermuda, 
was  very  similar.  The  vessel  had  a  cargo  of  arms  and  munitions 
of  war,  taken  on  board  chiefly  at  London  under  the  direction  of 
Confederate  agents.  The  nominal  destination  of  the  vessel  and 
cargo  was  Cardenas,  Cuba;  but  the  proofs  of  evidence  were  clear 
that  the  real  destination  after  reaching  Cardenas  was  to  be  a  port 
of  the  Confederacy. 

Chief  Justice  Chase  said  :*' 

"The  case  in  its  principal  features  resembles  that  of  the 
Bermuda  and  her  cargo;  they  are,  perhaps,  even  more  irrecon- 
cilable with  neutral  good  faith. 

"It  is  enough  to  say  that  neutrals  who  place  their  vessels  under 
belligerent  control,  and  engage  them  in  belligerent  trade,  or  permit 
them  to  be  sent  with  contraband  cargoes  under  cover  of  false 
destination  to  neutral  ports,  while  the  real  destination  is  to  bel- 
ligerent ports,  impress  upon  them  the  character  of  the  belligerent 
in  whose  service  they  are  employed,  and  cannot  complain  if  they 
arc  seized  and  condemned  as  enemy  property." 

The  lower  Court's  decree  condemning  both  the  vessel  and  cargo 
was  affirmed.®" 

If  the  decisions  in  the  cases  of  the  Bermuda  and  Hart  are  com- 
pared with  the  judgments  in  the  cases  of  the  Springbok  and  the 
Peterhoff,  also  tried  a  little  later  by  the  Federal  Supreme  Court  of 
the  United  States,  it  becomes  apparent  that  some  decisions  at 
least  of  Municipal  Tribunals  of  the  highest  degree,  possessing  a 
continuing  and  compulsory  jurisdiction,  may  be  open  to  attack  or 

"At  p.  558. 

*'{i865)  3  Wall.  559- 

"At  p.  560. 

■^The  doctrine  of  continuous  voyages  affirmed  in  these  two  cases  of 
the  highest  American  Court  as  a  rule  of  the  Law  of  Nations,  while  not 
accepted  as  sound  by  all  publicists  and  all  nations,  was  later,  during  the 
South  African  Three  Years'  War,  acted  upon  by  Great  Britain  in  the 
case  of  the  German  steamers  Bundesrath,  Hersog  and  General.  Those 
three  vessels  bound  in  tgoo  from  neutral  German  ports  to  the  neutral 
Portuguese  port  of  Lorenzo  Marques  on  Delagoa  Bay,  were  seized  by 
cruisers  of  Great  Britain  because  these  neutral  vessels  were  thought  to 
be  carrying  contraband  of  war  destined  for  the  two  Boer  Republics.  The 
German  Government  demanded  their  release  on  the  ground  that  as  they 
were  sailing  between  neutral  ports,  there  could  not  be  said  to  be  any 
carrying  of  contraband  between  the  neutral  ports.  Great  Britain  did 
not  recognize  the  principle  advanced  by  Germany,  and  asserted  that, 
even  though  carried  in  a  neutral  vessel  bound  for  a  neutral  port,  articles 
intended  ultimately  for  the  enemy  were  contraband  of  war. 


30  COLUMBIA  LAW  RBVIBW. 

unfavorable  criticism  as  compromises,  rather  than  judgments  judi- 
cial in  character,  with  quite  as  much  justice  and  plausibiUty  as  many 
of  the  decisions  of  International  Courts  of  Arbitration  appointed  ad 
hoc,  which,  possessing  merely  a  temporary  existence,  do  not  enjoy 
a  compulsory  jurisdiction,  but  rely  on  the  previous  agreement  and 
willingness  of  the  litigant  Nations  to  accept  and  loyally  carry  out 
the  decisions  handed  down  by  such  temporary  International  Tri- 
bunals. To  put  it  in  other  words,  many  of  the  International 
Courts  of  Arbitration  appointed  ad  hoc,  whose  judgments  have 
been  severely  attacked,  often  by  more  or  less  interested  parties,  as 
compromises  rather  than  judicial  decisions,  were  no  more  guilty 
in  that  respect  than  Municipal  Tribunals  in  many  decisions  which 
the  latter  have  handed  down;  and  in  many  instances  did  render 
judicial  decisions  which  have  been  unjustly  attacked  as  com- 
promises. 

The  Springbok  sailed  from  London,  December  8th,  1862,  and 
was  captured  about  one  hundred  and  fifty  miles  east  of  Nassau,  a 
port  in  one  of  the  British  West  Indies,  February  3rd,  1863,  when 
bound  to  that  port.^^  Both  ship  and  cargo  were  condemned  by 
the  District  Court,  and  the  case  was  appealed  to  the  Federal 
Supreme  Court. 

The  shipping  articles  engaged  the  crew  not  only  from  London 
to  Nassau,  but  also  from  there,  Chief  Justice  Chase  said,"^  if 
necessary,  to  any  other  West  Indian,  British  North  America  or 
American  port,  and  finally  to  a  British  port,  "and  it  is  also  true 
that  this  engagement  would  include,  should  the  master  undertake 
it,  a  continuance  of  the  voyage  for  the  conveyance  of  the  cargo 
from  Nassau  to  a  blockaded  port ;  but  there  is  no  proof  that  there 
was  any  engagement  for  such  continuance  of  the  voyage." 

The  ship's  papers  seemed  to  show,  the  Court  thought,  no  inten- 
tion to  take  the  goods  further  than  Nassau,  though  the  master  was 
uncertain  in  his  testimony  as  to  the  real  ownership  of  the  cargo. 
The  Court  decided  that  the  ship  was  not  involved  with  the  con- 
traband part  of  the  cargo,  but  was  in  good  faith  carrying  it  to  a 
neutral  port,  Nassau,  so  the  vessel  was  not  condemned  by  the 
Court,  though  the  judgment  of  the  lower  Court  was  affirmed  as 
to  the  cargo. 

On  the  whole  review  of  the  case  it  would  seem  that  the  Court 
was  anxious  not  to  condemn  a  merchant  vessel  of  a  powerful 

"The  Springbok  (1866)  5  Wall.  i. 

"At  p.  21.  .    -         .  . 


INTERNATIONAL   ARBITRATION.  31 

neutral  State  whose  government  had  been  none  too  friendly  to  the 
Union  cause;  and,  although  there  was  evidence  that  seemed  to 
show  that  the  Springbok  could  have  been  continued  for  a  Con- 
federate port  when  captured  in  the  region  of  the  port  of  Nassau, 
a  port  well  known  to  be  in  service  as  a  base  for  running  the  block- 
ade, the  Court  nevertheless  discharged  the  vessel.  While  in  the 
case  of  the  Springbok  the  suspicion  of  unneutral  service  on  the 
part  of  the  vessel  was  not  overwhelming,  still  it  distinctly  existed, 
and  so  gives  strong  color  to  the  thought  that  the  decision  of  the 
Court  in  that  case  in  not  condemning  the  vessel  was  a  desire  to 
reach  a  compromise  which  would  be  more  or  less  pleasing  to  both 
Nations. 

The  Peterhoff,  a  British  vessel,  bound  from  London  to  Mata- 
moras  in  Mexico,  forty  miles  up  the  Rio  Grande  and  opposite 
Brownsville  in  the  Confederate  States,  was  seized  February  25th, 
1865,  by  a  United  States  war  vessel  near  the  island  of  Saint 
Thomas.^^  The  cargo,  which  was  miscellaneous  in  character,  was 
in  part  useful  for  military  purposes.  It  consisted  also  of  iron, 
steel,  many  drugs  and  other  things  which,  owing  to  the  blockade 
of  the  Confederacy  by  the  Federal  Government,  were  much  needed 
in  the  Confederate  States.  When  the  Peterhoff  was  captured  by 
the  United  States  cruiser  Vanderbilt,  not  only  did  the  captain  of  the 
Peterhoff  refuse  to  go  on  board  the  war  vessel  to  have  his  papers 
examined,  on  the  ground  that,  as  he  was  carrying  a  British  mail, 
all  his  papers  should  be  examined  on  his  own  ship,  but  also  papers 
or  articles  of  some  sort  were  thrown  overboard  by  his  command 
and  lost.  The  captain  of  the  Peterhoff,  in  addition,  admitted  in 
Court  that  he  had  destroyed  some  letters,  which  he  swore  were 
addressed  to  him  by  his  wife  and  father,  but  that  no  other  papers 
were  destroyed.  The  cargo  was  shipped  mostly  by  various  British 
subjects,  and  a  portion  of  it  belonged  to  the  owner  of  the  vessel. 
The  New  York  District  Court  condemned  both  the  vessel  and  the 
cargo  as  lawful  prizes  of  war. 

The  Federal  Supreme  Court  decided  that  part  of  the  cargo 
was  contraband,  and  that  so  much  of  the  rest  of  the  cargo  as  was 
not  contraband,  but  belonged  to  the  owner  of  the  contraband, 
must  be  condemned.  The  Court,  however,  did  not  condemn  the 
rest  of  the  cargo,  nor  the  vessel,  on  the  ground  that  there  was  no 
intention  of  the  vessel's  attempting  to  break  the  blockade.  In  view 
of  the  throwing  into  the  sea  of  some  papers  or  some  object  from 

"The  Peterhoff  (1866)  5  Wall.  28. 


32  COLUMBIA  LAW  REVIEW. 

the  vessel  at  the  time  the  capture  was  taking  place,  and  the  mas- 
ter's admission  in  Court  that  he  had  destroyed  papers  which  he 
alleged  were  merely  letters  from  his  wife  and  father,  it  would 
seem  that  the  Court  was  lenient  in  its  decision,  preferring  not  to 
press  too  hard  on  the  neutral  owners  either  of  the  vessel  or  of  a 
large  part  of  the  cargo.  A  comparison  of  the  judgment  in  this 
case  with  those  in  the  cases  of  The  Bermuda  and  The  Hart,  in 
view  of  the  strange  doings  of  the  master  of  The  Peterhoff  in 
destroying  papers  on  board  his  vessel  and  throwing  a  package  into 
the  sea  at  the  time  of  the  capture  of  The  Peterhoff,  strongly  sug- 
gests that  the  judgment  of  the  Court  in  this  case  was  very  possibly 
a  compromise. 

The  Supreme  Court  of  the  United  States  in  both  the  case  of  the 
Springbok  and  that  of  the  Peterhoff,  while  sustaining  the  lower 
Courts  in  their  judgments  as  to  the  condemnation  of  the  con- 
traband portion  of  the  cargo,  had,  nevertheless,  a  good  and  abund- 
ant reason  to  be  lenient  wherever  it  was  possible  upon  the  vessels 
of  Great  Britain,  a  strong  neutral  nation,  because  Great  Britain 
throughout  the  war  had  often  shown  that  she  was  jealous  of  the 
rise  and  growth  of  the  United  States.  While  it  cannot  be  affirmed 
positively  that  the  judgments  handed  down  by  the  Federal  Su- 
preme Court  in  the  cases  of  the  Springbok  and  the  Peterhoff  were 
compromises,  nevertheless,  those  two  decisions  are  open  to  crit- 
icism«as  compromises  rather  than  strictly  judicial  judgments  with 
quite  as  much  plausibility  and  accuracy  as  a  number  of  judgments 
given  by  International  Tribunals  set  up  ad  hoc,  which  have  been 
criticised  by  some  writers  as  being  compromises. 

A  comparison  of  the  decisions  in  the  cases  of  The  Queen  v. 
Keyn  and  the  Paquete  Habana  with  those  in  the  cases  of  the 
Alabama  claims  and  the  Bering  Fur  Seal  Fisheries  is  illuminative 
of  the  subject  under  discussion.  In  many  important  respects  those 
two  pairs  of  cases — the  one  pair  tried  before  Municipal,  the  other 
before  International  Tribunals — are  very  similar. 

In  the  two  former  of  these  four  cases,  the  two  which  were 
argued  before  and  decided  by  two  notable  Municipal  Tribunals, 
the  Court  in  neither  case  was  unanimous.  The  same  thing  was 
true  of  the  latter  two  cases,  the  two  which  were  tried  and  decided 
by  International  Courts  of  Arbitration.  In  The  Queen  v.  Keyn 
the  Court  divided  seven  judges  to  six,  and  in  the  Paquete  Habana 
six  to  three.     In  the  Alabama  claims  case  the  Tribunal  divided  on 


INTERNATIONAL  ARBITRATION.  33 

some  counts  four  to  one,  on  others  three  to  two,  and  in  the  Bering 
Fur  Seal  case,  on  the  question  of  the  extent  of  the  territorial  sea 
the  Court  was  six  to  one  in  favor  of  the  three  mile  limit  and  five  to 
two  on  some  other  points  of  the  case.  In  all  four  of  those  cases 
the  judges,  both  Municipal  and  International,  had  to  rely  in  part  on 
their  own  individual  consciences  and  common  sense  in  arriving  at 
their  decisions.  In  other  words  they  had  to  decide  something  that 
had  never  been  decided  before.  Another  point  of  similarity  is  to 
be  found  in  The  Queen  v.  Keyn  and  the  Alabama  claims  cases. 
In  each  of  those  two  cases,  one  tried  before  a  Municipal,  the  other 
before  an  International  Tribunal,  legislation  was  called  into  play. 
As  a  result  of  the  decision  in  The  Queen  v.  Keyn,  which  abolished 
the  territorial  sea  so  far  as  English  Law  and  English  Courts  were 
concerned,  Parliament  had  to  come  to  the  rescue  in  the  Territorial 
Waters  Jurisdiction  Act  of  August  i6,  1878,  to  remedy  the  result- 
ing situation  which  placed  Great  Britain  in  a  way,  as  a  result  of 
that  decision,  outside  of  the  pale  of  International  Law.  By  that 
act.  Parliament  not  only  overruled  the  decision  of  the  Court  in 
The  Queen  v.  Keyn,  but  even  went  so  far  as  to  say  that  that  deci- 
sion was  wrong  in  its  interpretation  of  the  Law  in  the  past.°*  For 
the  Act  declared  that  Her  Majesty's  jurisdiction  over  the  open  seas 
adjoining  Her  dominions  not  only  extended  but  also  "has  always 
extended"  over  the  marginal  seas  as  far  as  was  necessary  for  the 
security  of  Her  Majesty's  dominions.  In  the  Alabama  claims  case, 
legislation  also  had  to  be  called  into  play,  for  the  agreement  as  to 
the  "Three  Rules"  of  the  Treaty  of  Washington  was  legislation 
by  the  two  interested  Nations  as  to  that  particular  case.  There 
was  this  difference  between  the  two  cases,  that  in  the  former  the 
legislation  was  resorted  to  as  a  result  of  the  decision,  as  a  means 
of  nullifying  it  for  the  future,  as  well  as  declaring  it  wrong  as  to 
the  past ;  while  in  the  latter  case  the  legislation  was  a  prerequisite 
so  as  to  clarify  the  Law  of  Neutralit\^  upon  which  the  American 
and  the  British  Governments  were  not  in  accord,  in  order  that  the 
Alabama  claims  case  might  be  tried  before  the  International  Court 
that  sat  at  Geneva.  In  both  cases,  the  one  tried  by  a  Municipal 
Court  as  well  as  the  one  tried  by  an  International  Tribunal,  legis- 
lation was  necessary. 

As  Professor  John  Bassett  Moore  has  so  well  said,'^  the  legis- 
lation agreed  upon  in  the  Treaty  of  Washington  by  the  United 

"i  Moore,  Int.  Law  Digest,  714. 

^■'In  a  letter  of  October  31st,  1914,  to  the  present  writer. 


34  COLUMBIA  LAW  REVIEW. 

States  and  Great  Britain,  that  is,  the  Three  Rules,  which  were  to 
be  applicable  in  the  Alabama  claims  case,  did  not  touch  the  judicial 
character  of  the  decision  given  by  the  Geneva  Tribunal,  but  af- 
fected only  the  question  "whether  the  award  must  be  accepted  as 
an  exposition  of  contemporaneous  International  Law — just  as  we 
may  have  a  question  whether  the  judgment  of  one  of  our  Municipal 
Courts  in  obedience  to  a  statute  is  to  be  regarded  as  an  exposition 
of  the  Common  Law ;  and  in  determining  this  we  are  dealing  not 
with  the  judicial  or  non- judicial  character  of  the  deliverance  in  the 
remotest  degree,  but  with  the  question  whether  the  statute  was 
declaratory  of  the  Common  Law." 

The  essential  difference  between  International  Tribunals  of 
Arbitration  such  as  the  Geneva  Court  of  1871-72  and  the  Paris 
Court  of  1893  from  Municipal  Tribunals  such  as  the  Supreme 
Court  of  the  United  States  is  that  the  former  are  temporary  in 
their  existence  and  constituted  to  judge  a  particular  case  or  a  series 
of  somewhat  similar  or  analogous  cases,  while  the  latter  are  con- 
tinuous in  their  existence,  exercise  a  pre-existing  jurisdiction  to 
which  all  individuals  are  subject  nolens  volens,  and  sit  upon  all 
sorts  and  kinds  of  cases  that  may  be  brought  to  their  Bar.  It  may 
be,  perhaps,  that  in  time,  out  of  such  temporary  Courts  as  those  that 
sat  and  judged  at  Geneva  and  Paris  between  the  North  American 
Republic  and  the  British  Empire,  and  the  more  recently  constituted 
Courts  set  up  ad  hoc  at  the  capital  of  Holland  according  to  the  con- 
ventions of  The  Hague  Peace  Conferences,  a  Supreme  Court  of  the 
Nations,  always  in  being,  may  be  evolved  to  judge  legal  cases  aris- 
ing between  Nations.^®  But  before  an  attempt  is  made  to  estab- 
lish such  a  Tribunal  to  judge  always  between  the  members  of  the 
Family  of  Nations,  it  would  seem  wise  that  the  temporary  indi- 
vidual Tribunals  set  up  at  The  Hague  to  judge  each  a  designated 
case  or  series  of  similar  cases  should  be  changed  to  the  end  that 
the  judges  of  such  temporary  Courts  may  be  strengthened  in  the 
judicial  habit  to  the  exclusion  of  reconciling  the  political  desires 
of  the  contending  Nations. 

To  insure  so  far  as  possible  that  in  the  future  the  decisions 
given  by  the  International  Courts  set  up  ad  hoc  at  The  Hague 
shall  base  their  decisions  upon  judicial  grounds  and  avoid  even  a 

"Thomas  Willing  Balch:  Differends  juridiques  et  politiques  dans  les 
rapports  des  Nations,  Revue  Generate  de  Droit  International  Public,  Paris, 
1914,  p.  181. 


INTERNATIONAL   ARBITRATION.  35 

tinge  of  political  compromise  creeping  in,  three  things  could  be  re- 
sorted to.  First,  in  the  agreement  or.  compromis  referring  a  case 
to  one  of  The  Hague  International  Courts,  it  could  be  specifically 
provided  that  the  decision,  as  Professor  Oppenheim  has  suggested, 
should  be  based  upon  legal  grounds.  Second,  the  second  Hague 
Convention  of  1907  could  be  amended,  so  that  all  the  judges  in  the 
International  Courts  provided  for  under  The  Hague  Conventions 
should  be  not  only  men  learned  in  the  Law,  but  in  addition  should 
not  be  diplomatists  by  training.  Third,  in  accordance  with  the  mo- 
tion made  at  the  Second  Hague  Peace  Conference  by  Mr.  Scott  of 
the  United  States  and  supported  by  Professor  de  Martens  of  Rus- 
sia, Professor  Lammasch  of  Austria,  and  several  other  delegates, 
the  individuals  appointed  by  their  respective  governments  to  the 
panel  from  whom  the  judges  for  each  of  The  Hague  International 
Courts  should  be  chosen  to  try  a  particular  case,  must  not  be  per- 
mitted to  appear  in  any  international  case  as  advocates  or  agents, 
but  only  as  judges." 

In  addition,  it  would  be  well  if  the  publicists  of  the  world 
criticised  favorably  or  adversely,  as  the  facts,  the  arguments,  and 
the  decision  in  each  case  might  appeal  to  them,  the  judgment  of 
each  International  Court  and  even  of  each  individual  judge  sitting 
in  those  Courts,  and  point  out  when  and  in  how  far  each  court  or 
individual  judge  failed  to  judge  according  to  the  Law  and  sought 
to  base  his  decision  upon  a  compromise  so  as  not  to  displease  either 
party.  But  the  criticism  of  an  advocate  who  had  taken  part  in  a 
case  should  always  be  taken  cum  grano  salis.  In  that  manner,  the 
future  fame  of  the  individual  international  jurists  sitting  in  any  of 
The  Hague  Courts  set  up  ad  hoc  would  rest  in  a  measure  in  the 
hands  of  the  men  who  write  and  comment  upon  the  Law  of 
Nations.  In  that  way  not  only  a  strong  incentive  for  future  fame 
would  be  available  to  induce  the  judges  of  The  Hague  International 
Courts  to  judge  according  to  the  Law  of  Nations,  but  also  their 
actual  every  day  standing  as  jurists  would  be  enhanced  or  lowered 
accordingly  as  they  decided  as  international  judges  or  as  amiable 
reconcilers  or  mediators. 

By  thus  amending  the  manner  of  forming  The  Hague  Inter- 
national Courts  named  ad  hoc  to  try  each  a  single  case  or  a  series 

^''Deuxieme  Conference  Internationale  de  la  Paix:  Actes  et  Documents, 
The  Hague  Imprimerie  Nationale,  1907,  Vol.  II.,  p.  753.  Premiere  Com- 
mission, Premiere  souscommission,  Comite  d'Examen  C.  Huitieme  seance, 
9  Septembre  1907;  p.  767;  Comite  d'Examen  A.  Dix-septieme  seance, 
pp.  587-589. 


36  COLUMBIA  LAW  RBVIBW. 

of  similar  cases,  the  judicial  character  of  those  International 
Tribunals  of  Arbitration  would  be  strengthened;  and  they  could 
be  looked  to  for  the  dispensation  of  justice  in  the  future  between 
Nations  as  truly  as  in  the  past  the  High  Court  of  Admiralty  of 
England  in  Lord  Stowell's  day,  or  the  Supreme  Court  of  the 
United  States,  or  the  International  Tribunals  that  sat  respectively 
in  the  Alabama  claims  and  the  Bering  Sea  Fur  Seal  Fisheries 
cases,  handed  down  judicial  decisions  based  on  the  principles  of 
the  Law  and  the  ideas  of  justice, 

Thomas  Wilung  Bai^ch. 
Phii^adelphia,  Pa. 


THB    BVININa    PO*T    JOB    PRINTING    OFPICI.   INC. 

ISa    PULTON    aTRCCT.    NSW    YORK 

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